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UNITED STATES DISTRICT COURT

for the

DISTRICT OF NEW JERSEY

-------------------------------------------------------------- )

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

L.A. and A.A., )

) Civil Action No.

Plaintiffs, )

vs. )

)

RIVER VALE BOARD OF EDUCATION, )

JOELLE DEGAETANO, CAROL BEIERLE, )

NEW JERSEY DEPARTMENT OF )

EDUCATION, and STATE OF NEW JERSEY, )

)

Defendants. )

-------------------------------------------------------------- )

COMPLAINT

&

PETITION FOR DE NOVO REVIEW PURSUANT TO

THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT 

AND THE PARALLEL NEW JERSEY STATUTE

Dated: June 30, 2011 LORI E. ARONS, ATTORNEY AT LAW

Lori E. Arons, Esq. 

One University Plaza, Ste 514

Hackensack, NJ 07601

Loriarons@aol.com

201-388-9533

Counsel for Plaintiffs G.A., L.A. and A.A.

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PARTIES

1. PLAINTIFF, G.A., was born XXXXXXXX, 2007 and is diagnosed

with a unilateral mild-moderate-severe sensorineural hearing

impairment, ankyloglossia (tongue-tie), speech delay,

hypotonia; and is suspected to suffer from anxiety,

disfluency (stutter), auditory processing problems and

dyspraxia. G.A. is classified as “preschool disabled”

pursuant to the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. §1401(3)(A). At all relevant times,

G.A. resided with his parents in River Vale, New Jersey. 

2. PLAINTIFFS, L.A. and A.A., are G.A.’s mother and father,

respectively. At all relevant times, the parents were (and

remain) residents of River Vale, New Jersey.

3. DEFENDANT, RIVER VALE BOARD OF EDUCATION (“RVBOA”), having

its principal place of business at 609 Westwood Avenue,

River Vale, New Jersey is a local educational agency as that

phrase is defined by the IDEA, 20 U.S.C. §1401(15).

4. DEFENDANT, JOELLE DEGAETANO (“DEGAETANO”), resides in

Clifton, New Jersey, is employed by RVBOE, and was at all

relevant times the director of special education services.

5. DEFENDANT, CAROL BEIERLE (“BEIERLE”), resides in River Vale,

New Jersey, is employed by RVBOE, and was at all relevant

times case manager for G.A.

6. The NEW JERSEY DEPARTMENT OF EDUCATION (“NJDOE”), having its

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principal place of business at 100 River View Plaza,

Trenton, New Jersey.

7. THE STATE OF NEW JERSEY (“NEW JERSEY”), having its principal

place of business at New Jersey Department of State, 225 W.

State Street, P.O. Box 456, Trenton, New Jersey 08625.

8. Initials are used throughout this Complaint to preserve the

confidentiality of the infant plaintiff in conformity with

the privacy provisions of the IDEA, 20 U.S.C. §1417(c), the

Family Educational and privacy Rights Act (FERPTA), 20

U.S.C. §1232g, and the Federal Rules of Civil Procedure

5.2(a).

JURISDICTION AND VENUE

9. Plaintiffs bring this complaint on appeal from a final

decision of the Office of Administrative Law seeking redress

from Defendant RVBOE and for other relief for failure to

provide a Free and Appropriate Public Education (“FAPE”) and

for damages pursuant to the Individuals with Disabilities

Education Improvement Act, 20 U.S.C. §1400 et seq.; 34

C.F.R. part 300 et seq. (“IDEA”); N.J.A.C. 6A:14-1.1 et

seq.; and N.J.S.A. 18A:46-1 et seq. Plaintiffs also seek

relief for violations of the Rehabilitation Act of 1973, 29

U.S.C. §794 et seq. (“Section 504"); and the Americans with

Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”).

10. This complaint follows the April 14, 2011 final decision of

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Administrative Law Judge Kelly J. Kirk (“ALJ”) of the New

Jersey Office of Administrative Law, captioned L.A. and A.A.

o/b/o G.A. v. River Vale Board of Education, Docket No. EDS

11237-10, Agency Reference No. 2011-16342.

11. This Court has jurisdiction over the subject matter and the

parties pursuant to 20 U.S.C. §1415(i)(3)(A), which grants

jurisdiction over this matter “without regard to the amount

in controversy.” 20 U.S.C. §1415(i)(3)(A). 

12. Jurisdiction is further predicated upon 28 U.S.C. §1331,

which provides the district courts with original

jurisdiction over all civil actions that arise under the

laws of the United States. 

13. Venue is proper in the District of New Jersey pursuant to 28

U.S.C. §1391(b)(1) and 28 U.S.C. §1391(b)(2).

ALLEGATIONS

14. IDEA grants federal funds to NEW JERSEY to assist in the

education of disabled children. Receipt of those funds is

dependent upon NEW JERSEY’S compliance with the requirements

of IDEA, 20 U.S.C. §1411. NEW JERSEY takes part in the

federal program. N.J.S.A. 18A:46-1 et seq.; N.J.A.C. 6A:14-

1.1 et seq.

15. RVBOE receives federal funds for its programs and is

mandated to comply with federal and state laws concerning

the education of disabled children and the rights of their

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parents.

16. G.A. is a child with a disability as defined by 20 U.S.C.

§1401(3)(A), and is entitled to a FAPE. 

17. A FAPE consists of special education and related services

that are provided at public expense, meet state educational

standards, are provided in an appropriate school within the

state, and are provided in accordance with an Individualized

Education Program (“IEP”) developed for the child. 20

U.S.C. §1401(9). 

18. “An IEP is a detailed written statement arrived at by a

multi-disciplinary team summarizing a child’s abilities,

outlining the goals for the child’s education, and

specifying the services the child will receive.” L.J. v.

Audubon Board of Ed., 2007 U.S. Dist. LEXIS 81527 (D.N.J.

Nov. 5, 2007). 

19. The IDEA mandates parents are to be included as members of

the IEP team, and equal participants in developing the IEP. 

20 U.S.C. §1414(d)(1)(B); N.J.A.C. 6A:14-2.3(k).

20. The IDEA mandates disabled children are to be educated in

the least restrictive educational environment (“LRE”). 20

U.S.C.A. §1412(a)(5); N.J.A.C. 6A:14-4.2. 

21. As an infant, G.A. received Early Intervention Services

pursuant to Part C of IDEA; having been diagnosed at 11

weeks of age with torticollis, plagiocephaly and hypotonia. 

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The parents suspected speech delays, but were told he was

too young to assess or qualify for speech-language services. 

G.A. was discharged from Early Intervention at age one; and

denied services when later assessed for speech delays at age

two. 

22. During the 2009-2010 school year, GA attended a preschool

program for two year olds at Temple Beth El (“TBE”) in

Closter, New Jersey.

23. During the 2009-2010 school year, TBE offered a speech

screening to all students. As a result of the screening,

G.A. was referred for further evaluation due to articulation

errors. 

24. In February 2010, a private speech assessment revealed the

articulation errors resulted from ankyloglossia (literally

translated ‘tongue-tie’) and G.A. was referred to an ENT for

diagnostic evaluation.

25. In February 2010, an ENT confirmed ankyloglossia, speech

delays, and also discovered a unilateral sensorineural

(permanent-irreversible) hearing loss. The ENT recommended

a frenulectomy (surgery), speech-language therapy, and

referred G.A. to an audiologist for confirmation of the

hearing loss.

26. On March 2, 2010, GA was seen by a pediatric audiologist who

confirmed the diagnosis of unilateral sensorineural hearing

loss, and recommended a hearing aid.

27. On March 4, 2010, L.A. referred G.A. to RVBOE requesting he

be evaluated for special education and related services. 

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28. On March 4, 2010, DEGAETANO informed L.A. that G.A. could

not receive the speech-language services he immediately

required until the evaluation/classification process was

completed, and that RVBOE had 90 days to complete same.

29. On March 4, 2010, DEGATANO advised L.A. that upon being

classified, G.A. would be placed in the in-district three

year old contained program. A contained program means all

enrolled children are disabled. 

30. L.A. objected to a contained classroom and requested to see

the program. 

31. DEGAETANO advised L.A. she could not observe the program

until the completion of the evaluation/classification

process, which likely would not be completed prior to

expiration of the school year. As of March 4, 2010, there

remained 111 calendar days in the school year.

32. On March 4, 2010, DEGAETANO advised L.A. that RVBOE would

provide an FM system. 

33. L.A. asked DEGAETANO what an FM system is, and DEGAETANO

advised it is an assistive technology device that transmits

the teachers voice through a microphone to a receiver that

attaches to a hearing aid. 

34. DETAETANO advised L.A. that an FM system could not be

ordered until the parents first obtain a hearing aid because

the frequency of the FM system must coincide with the

frequency of the hearing aid. 

35. DEGAETANO advised L.A. an FM system was not in the budget

for the following year, and that L.A. should obtain a

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hearing aid quickly so it could be ordered utilizing the

current years budget. 

36. On March 5, 2010, G.A. was seen by a different ENT for a

second opinion. The parents were advised surgery is a last

resort and that G.A. should receive speech-language therapy

for three to six months to stretch the frenulum (connective

tissue under the tongue) and alleviate the ankyloglossia

(tongue-tie). A hearing aid and FM system were also

recommended. 

37. DEGAETANO had previously informed L.A. that RVBOE would not

provide speech-language therapy services prior to completion

of the classification process, and that the process would

take three months if not longer; therefore L.A. secured

private speech-language services to comply with the

recommendations of the medical, audiological and speechlanguage professionals. 

38. G.A. received private speech-language therapy twice per week

for 45 minutes commencing March 5, 2010. 

39. On March 10, 2010, RVBOE provided notice of a meeting to be

held March 25, 2010 at which DEGATANO and BEIERLE would be

present.

40. On March 25, 2010, the meeting was convened to determine

whether evaluation of G.A. was warranted, but neither

DEGAETANO nor BEIERLE were present. 

41. RVBOE offered to postpone the meeting to an unspecified date

and time, which offer L.A. declined based upon RVBOE’s

advice that a delay in the meeting would result in a delay

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in the eligibility/classification process which would her

from observing the proposed program. 

42. On March 25, 2010, it was determined and agreed evaluation

of G.A. was warranted, but RVBOE did not request written

consent to evaluate at that time. 

43. After the meeting, and on March 25, 2010, DEGAETANO again

advised L.A. the process may not be completed in time for

her to observe the proposed program. Thereupon, L.A.

requested that G.A.’s treating therapist conduct the

additional speech-language testing required since it could

be done prior to conclusion of the school year, and

DEGAETANO agreed but maintained RVBOE’s other evaluations

still may not be completed in time to permit observation of

the program. As of March 25, 2010, there remained 90

calendar days in the school year.

44. Two weeks later, and by letter dated April 8, 2010, RVBOE

mailed the request for parental consent to evaluate G.A.

45. Throughout the evaluation process, and at every informal

opportunity to do so, L.A. voiced objection to a contained

program. 

46. L.A. asked DEGAETANO if G.A. could receive related services

absent a program altogether. DEGAETANO admits to responding

“absolutely not” and further stated that the only way RVBOE

would provide services to G.A. was through its own indistrict pre-school disabled program.

47. With no alternatives available, L.A. requested RVBOE

consider its four year old integrated class believed to be 

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a less restrictive placement than the three year old

contained program. An integrated program means half the

enrolled children are disabled and half are not.

48. On May 20, 2010, RVBOE conducted a physical therapy

evaluation, which evaluation did not employ use of any

standardized testing, such as the Peabody Gross Motor

Development Scales. While G.A. was delayed and in need of

physical therapy services, but the abbreviated evaluation

failed to determine the extent of G.A. needs.

49. On June 7, 2010, RVBOE conducted a psychological evaluation,

which consisted of only a parent interview. No formal

testing was conducted of G.A. himself and no cognitive or

intelligence tests were administered, such as the Wechsler

Preschool and Primary Scale of Intelligence test.

50. On June 23, 2010 the school year concluded without the

parents having had opportunity to observe the proposed

placement.

51. On July 16, 2010, L.A. attended the eligibility meeting.

52. At the eligibility meeting, L.A. was for the first time

provided with the physical therapy evaluation report. 

53. At the meeting, BEIERLE advised L.A. that G.A. was eligible

for special education and related services. 

54. At the meeting, BEIERLE asked L.A. to sign consent that G.A.

be classified pre-school disabled, which L.A. did.

55. At the meeting, BEIERLE asked L.A. to sign consent

immediately proceed with an IEP meeting; which L.A. did. 

56. BEIERLE then presented L.A. with an already prepared “draft”

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IEP.

57. The implementation date of the IEP was September 7, 2010.

58. L.A. asked that the IEP include extended school year

services for the immediate summer 2010. BEIERLE refused to

discuss or consider expended school year services.

59. “Extended school year services” (“ESY”) means special

education and related services that are provided to a

student with a disability beyond the normal school year in

accordance with the student’s IEP at no cost to the parent.

60. L.A. asked that the IEP include individual speech therapy

services three times per week as was recommended in the

speech-language evaluation report. BEIERLE refused stating

that frequency of services could be later increased if

deemed necessary, and the only way GA would receive

individual speech therapy was if no-one else needed it. 

61. L.A. asked that an occupational therapy evaluation be

conducted. BEIERLE refused to order an evaluation at that

time, stating one could be conducted during the next school

year should it then be deemed necessary.

62. L.A. asked that the IEP include mid-day transportation

between the morning program at TBE and the afternoon program

in River Vale. BEIERLE refused, stating it was against

school policy. L.A. asked to see the policy, and was told

to submit a formal request. L.A. submitted the formal

request and in response received a request for fifteen

cents. L.A. paid the fifteen cents, but was never provided

the policy. 

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63. BEIERLE next asked L.A. to sign the IEP. L.A. refused, and

the meeting concluded. 

64. On July 21, 2010, L.A. hand delivered a letter to BEIERLE to

again request changes to the IEP, and included a request

that RVBOE provide a hearing aid and an independent

occupational therapy evaluation.

65. On July 26, 2010, RVBOE hand delivered to L.A. a nonstandard response letter, which letter was silent as to

RVBOE’s intentions with respect to the parental request for

an independent occupational therapy evaluation.

66. On July 26, 2010, RVBOE hand delivered to L.A. the proposed

IEP, which was substantially similar to the “draft” IEP but

for some corrections (i.e. removal of an incorrect statement

that GA had a privately owned hearing aid, and the name of

another child.) None of the substantive changes L.A. had

requested were incorporated therein.

67. The parents declined to sign the IEP, and on August 9, 2010,

filed a request for due process with the New Jersey Office

of Special Education. Plaintiffs incorporate by reference

herein the entirety of the Parental Request for Due Process

and the Supplemental Request for Due Process.

68. Despite never having observed the program, L.A. requested

interim public placement in the district proposed program

pending outcome of the dispute. RVBOE denied the request.

69. RVBOE held a meet and greet for preschool students prior to

start of the school year. Plaintiffs were not invited to

attend the meet and greet.

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70. On October 21, 2010, the case was transmitted to the Office

of Administrative Law. The matter was heard on December 13,

2010, January 3, 2011, January 18, 2011, January 20, 2011,

February 7, 2011, February 14, 2011, February 22, 2011

(conference call), March 2, 2011 (conference call), March 7,

2011, and March 21, 2011 (closing arguments by conference

call). 

71. The ALJ rendered a decision dated April 14, 2011 which

denied Plaintiffs’ petition for reimbursement of the hearing

aid, audiological evaluations, 2010 summer program tuition,

2010/2011 preschool program tuition, independent

occupational therapy evaluation, occupational therapy

services, speech-language therapy services, transportation,

compensatory education and compensatory related services;

but awarded reimbursement of a speech-language evaluation

and speech-language therapy services for June 2010 and July

2010; and further directed that the parties reconvene to

create an IEP for 2009-2010 with placement being the indistrict integrated program, and supplemented to include 45

minutes of occupational therapy once per week with all

related services being provided individually or in a group

not to exceed two students.

72. On May 4, 2011, a meeting was convened in an effort to

comply with the ALJ’s order. 

73. L.A. asked that the IEP include ESY for summer 2011 and

offered to obtain progress reports from his treating

therapists who had testified G.A. requires ESY.

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74. RVBOE refused to consider ESY and advised they would not

consider any progress reports, that the only way ESY would

be considered is if G.A. were immediately enrolled in the

soon to conclude program.

75. L.A. asked whether the school audiologist is capable of

conducting the periodic audiograms G.A. requires. DEGAETANO

advised RVBOE does not have that capability. L.A. requested

that the IEP include audiology services. RVBOE refused to

provide audiology services.

76. L.A. asked that the IEP include occupational therapy goals

since occupational therapy services were now included per

the ALJ’s order. DEGAETANO refused, stating that the ALJ

did not specify any goals be included in the IEP.

77. L.A. asked that speech-language therapy services be provided

in addition to, rather than during, the regularly scheduled

class time as required by N.J.A.C. 6A:14-4.4. DEGAETANO

refused, stating that the law requires only 10 hours of

weekly instruction for preschoolers, and that since RVBOE’s

program provides 12 hours, RVBOE is not obligated to provide

services outside of the regularly scheduled class time.

78. L.A. asked that cognitive and neurological evaluations be

conducted. DEGAETANO refused, stating that G.A. is only

entitled to evaluations that are related to his disability.

79. By letter dated May 4, 2011, L.A. memorialized various

objections to the newly prepared IEP and again requested

additional evaluations. 

80. By letter dated May 12, 2011, RVBOE responded to plaintiffs

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letter stating the “. . . the meeting on May 4, 2011 was

solely for the purposes of revising the IEP to comport with

the ALJ’s decision.” 

81. Defendants have disregarded the ALJ’s directive that the

parties create an IEP incorporating certain specified

changes required by the ALJ, instead using the decision to

shield itself from its statutory obligations.

82. Defendants have violated Plaintiffs’ rights under IDEA, 20

U.S.C. §1400 et seq.

83. Defendants have violated Plaintiffs’ rights under Title 6A

of the New Jersey Administrative Code.

84. Defendants have violated Plaintiffs’ rights under Section

504 of the Rehabilitation Act of 1973.

85. Defendants have violated Plaintiffs’ rights under due

process clause of the 14th Amendment to the Constitution of

the United States.

86. Defendants have violated Plaintiff G.A.’s right to a

thorough and efficient education as guaranteed by the New

Jersey Constitution.

CAUSES OF ACTION

COUNT I

Procedural Violations

87. Plaintiffs repeat the allegations of paragraphs 1 through 86

as if fully set forth herein.

88. Both Congress and the Supreme Court place great importance

on the procedural provisions incorporated into §1415. See

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Hendrick Hudson Central School District Board of Education

v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d. 690

(1982).

89. Courts have considered whether procedural violations

standing on their own justify a finding that a FAPE has been

denied, and they have reached a consistent result that

procedural violations that deprive parents of meaningful

opportunities to participate in decision-making and that

deprive the student of educational opportunity constitute

denials of FAPE. See C.M. v. Bd. of Educ. of Union County

Reg’l High Sch. Dist., 128 Fed. Appx 876, 881 (3d Cir. 2005)

90. RVBOE failed to convene a meeting of the child study team

within 20 calendar days of the written request for initial

evaluation of G.A. in violation of N.J.A.C. 6A:14-3.3(e).

91. RVBOE failed to obtain parental consent to evaluate G.A.

without delay in violation of N.J.A.C. 6A:14-3.4(c)(1). 

RVBOE could have obtained the requisite consent at the March

25, 2010 meeting, but instead waited two weeks to first mail

the request for written consent.

92. RVBOE failed to convene a meeting of the child study team 

to determine eligibility for services within 90 calendar

days in violation of N.J.A.C. 6A:14-3.4(c). The meeting was

instead convened on July 16, 2010, 134 days after request

for evaluation was made.

93. RVBOE failed to provide the physical therapy report to the

parents ten days in advance of the eligibility meeting in

violation of N.J.A.C. 6A:14-3.5(a); instead providing it at

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the eligibility meeting.

94. RVBOE failed to provide the proposed IEP to the parents

within 90 calendar days in violation of N.J.A.C. 6A:14-

3.4(c). The proposed IEP was instead provided 144 days

after request for evaluation. 

95. RVBOE failed to implement the proposed IEP within 90

calendar days in violation of N.J.A.C. 6A:14-3.4(c). The

implementation date was instead September 7, 2010, 188 days

after the initial request for evaluation. 

96. RVBOE failed to have available a continuum of placements to

meet GA’s needs in violation of N.J.A.C. 6A:14-4.1; instead

pre-determining placement, prior to conducting evaluations,

in an in-district preschool disabled program.

97. RVBOE failed to conduct sufficiently comprehensive

evaluations to identify all of GA’s special education and

related services needs in violation of N.J.A.C. 6A:14-2.5.

RVBOE conducted only perfunctory evaluations to give the

appearance of having complied with the IDEA.

98. RVBOE refused to allow parental observation of the proposed

educational placement prior to implementation of the IEP in

violation of N.J.A.C. 6A:14-4.1(k). Defendants excluded

G.A. from the classroom meet and greet prior to the start of

school and expected Plaintiffs to consent to placement in

the proposed program sight unseen.

99. RVBOE systematically and unreasonable engaged in a pattern

of delays that forestalled the parents opportunity to

observe the proposed program and deprived Plaintiffs of

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meaningful opportunity to participate in development of the

IEP. 

100. RVBOE failed to involve the parents as equal members of the

child study team. 

101. RVBOE came to the July 16, 2010 eligibility meeting with an

already prepared IEP. Courts have held this violation

standing alone sufficient to hold FAPE was denied.

102. RVBOE failed in its obligation to explain why speechlanguage services provided in the IEP differed from services

recommended in the evaluation reports upon which the IEP is

based.

103. RVBOE failed in its statutory obligation to propose timely

implementation the IEP within 90 days in violation of

N.J.A.C. 6A:14-3.4(e). 

104. RVBOE failed in its statutory obligation to consider ESY in

violation of N.J.A.C. 6A:14-4.3(c). ESY was necessary in

order to implement the IEP within 90 days as required by

statute; and based upon emerging skills at G.A. was at a

critical age for development of speech and language. A

delay in services would result in irreparable harm.

105. G.A. had no prior IEP and did not have benefit of a “stay

put” pending outcome of the dispute.

106. RVBOE failed to offer an interim public placement in 

violation of 34 CFR §300.518(b). 

107. RVBOE failed to provide the requested and paid for

transportation policy.

108. RVBOE failed in its statutory obligation to respond to the

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parental request for an independent occupational therapy

evaluation. 

109. Defendants violated the procedures set forth in IDEA and the

parallel New Jersey statute.

110. The aforesaid violations significantly impeded plaintiffs

rights, resulted in loss of educational opportunity for

G.A., and constitute a denial of FAPE.

COUNT II

Least Restrictive Environment

111. Plaintiffs repeat the allegations of paragraphs 1 through

110 as if fully set forth herein.

112. The right to FAPE includes the right to be educated in the

Least Restrictive Environment.

113. IDEA requires that all children with disabilities must be

educated in the Least Restrictive Environment (“LRE”) that

is appropriate for them. The spirit of this requirement is

to ensure that children are not unnecessarily removed from

the regular classroom or isolated from other non-disabled

children of their age. 

114. IDEA also requires that schools provide a full continuum of

services ranging from regular classrooms with support to

special classes, and special school placements as needed.

115. Disabled children should be mainstreamed to the maximum

extend appropriate and their removal from the regular

education environment should occur only when the nature or

severity of the disability is such that education in regular

classes with the use of supplementary aids and services

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cannot be achieved satisfactorily. N.J.A.C. 6A:14-4.2.

116. The nature and severity of G.A.’s disability does not

warrant placement outside the regular preschool classroom.

117. There was no age-appropriate “mainstream” public school

placement option available in River Vale that RVBOE could

offer. However, RVBOE did offer its integrated preschool 

program attended by mostly four year olds. 

118. The proposed placement was inappropriate because it is a

“hybrid program” as defined by the Third Circuit in T.R. v.

Kingwood Township Bd. of Educ., 205 F.3d 572, 578 (3d Cir.

2000), and is therefore not the LRE. A hybrid program means

the program cannot be classified either as a special

education or a general education program because half of the

children are disabled and half are not. 

119. The proposed placement was inappropriate because it did not

offer a peer group of typically developing three year olds.

120. The proposed placement was inappropriate because it offered

a peer group of four year olds, half of whom were disabled.

121. Under the special education regulations preschool disabled

children may be placed in private preschools to provide the

opportunity for interaction with typically developing peers

and the district’s paraprofessionals may provide services in

these private preschools. N.J.A.C. 6A:14-4.3(c).

122. RVBOE failed to inform Plaintiffs that they could seek

public funding for a private preschool placement.

123. RVBOE refused to consider programs other than its own indistrict preschool disabled classes, failed in its

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obligation to have a full continuum of alternative

placements available, and deprived G.A. of a FAPE.

124. The proposed placement was inappropriate because it employs

use of Rifton chairs for all enrolled children.

125. Rifton chairs by design, and in their most innocuous

version, are restrictive devices; and appropriately are not

used categorically throughout mainstream classrooms.

126. Use of a Rifton Chair is inappropriate for G.A.

127. The proposed program violates GA’s constitutional right to

be free from unreasonable restraint.

128. RVBOE refused to provide the services GA required absent

attendance in an in-district preschool disabled program.

129. Defendants violated Plaintiffs rights under state and

federal laws and deprived G.A. of a FAPE in failing to offer

to educate him in the LRE. 

COUNT III

Assistive Technology Devices and Services

130. Plaintiffs repeat the allegations of paragraphs 1 through

129 as if fully set forth herein.

131. The right to FAPE includes the right to have assistive

technology devices and services provided by the school

district whenever the technology is necessary for the

student to make meaningful educational progress, or to

ensure a student’s placement in the LRE. N.J.A.C. 6A:14-

3.7(c).

132. An assistive technology device means any item, piece of

equipment, or product system, whether acquired commercially

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off the shelf, modified, or customized, that is used to

increase, maintain, or improve the functional capabilities

of children with disabilities, and an assistive technology

service means any service that directly assists a student

with a disability in the selection, acquisition, or use of

an assistive technology device. N.J.A.C. 6A:14-1.3. 

133. Audiology is a related service and includes selection and

fitting of an appropriate aid. 34 CFR §300.34(c)(1). 

134. While IDEA specifically excludes a cochlear implant, it does

not exclude a hearing aid.

135. It is undisputed G.A. suffers from unilateral mild-moderatesevere sensorineural hearing loss.

136. It is undisputed a hearing aid is recommended for G.A. by

his treating doctors, audiologists and therapists. 

137. DEGAETANO and BEIERLE failed to advise Plaintiffs they may

seek public funding for the hearing aid, and instead

repeatedly pressed plaintiffs to obtain the hearing aid at

their own expense. 

138. RVBOE did offer to provide an ear level FM system, but

stated it works in tandem with a hearing aid and could not

be ordered until a hearing aid is first obtained. 

139. In an effort to compel Plaintiffs to obtain the necessary

hearing aid, DEGAETANO advised Plaintiffs an FM system was

not in the budget for the following year and needed to be

ordered as soon as possible to be included in the current

years budget. 

140. By letter dated July 21, 2010, Plaintiffs requested RVBOE

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provide a hearing aid.

141. Rather than provide the necessary hearing aid, RVBOE revoked

its offer of an ear level FM system, replacing it with

either a desk level or classroom wide speaker system, which

options were never discussed with the parents or

contemplated in the IEP; and are inappropriate for G.A.

according to his audiologist.

142. Defendants violated Plaintiffs rights under state and

federal laws and deprived G.A. of a FAPE by refusing to

provide the necessary hearing aid and audiology services. 

COUNT IV

Educational Benefit

143. Plaintiffs repeat the allegations of paragraphs 1 through

142 as if fully set forth herein.

144. The right to FAPE includes the right to have sufficiently

comprehensive evaluations conducted to identify all areas of

special education and related service needs, and to receive

the necessary related services through the IEP to enable 

meaningful educational progress. N.J.A.C. 6A:14-2.5.

145. RVBOE failed to conduct sufficiently comprehensive

evaluations to identify all areas of special education and

related service needs. Both evaluations conducted by RVBOE

were dismally deficient. 

146. The psychological evaluation failed to include any testing

of G.A. himself and consisted only of a parent interview;

and despite concluding G.A. was delayed in daily living

skills, no additional testing was recommended or conducted,

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and the proposed IEP was devoid of goals to address those

deficits.

147. G.A. is among the less than 5% of children who suffer from

extreme separation anxiety. RVBOE failed to conduct a

functional behavioral evaluation, and defendants refused to

include goals or accommodations in the IEP to address the

issue.

148. Despite the proposed placement being the four year old

integrated class, RVBOE failed to conduct a cognitive

evaluation to determine whether G.A. at three could be

appropriately placed with older children. 

149. The physical therapy evaluation failed to employ use of any

standardized testing, and a subsequent occupational therapy

evaluation revealed significant gross motor delays and

dyspraxia; which would have been discovered had a proper

physical therapy assessment been conducted.

150. Despite G.A.’s need for assistive technology devices and

services, RVBOE did not conduct an assistive technology

evaluation and ignored the recommendations in the parent

provided medical and audiological evaluations. 

151. After plaintiffs requested RVBOE provide a hearing aid,

defendants took the position G.A. did not require a hearing

aid and a speaker FM system would be sufficient.

152. Despite G.A.’s need for speech-language therapy services,

RVBOE did not conduct speech-language testing and ignored

the recommendations in the parent provided evaluation.

153. G.A. was hearing impaired, tongue-tied, and at three years

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of age could not benefit from speech therapy services twice

per week for 30 minutes in a group of as many as five

children, all of whom would be older than him.

154. Fearing GA would languish in a group of as many as five

students, most if not all of whom were a year older than GA,

Plaintiffs secured private speech therapy services, and

sought reimbursement in the due process hearing. 

155. The ALJ found GA requires speech-language services

individually or in a group of no more than two students.

156. The right to FAPE includes the right to receive speechlanguage services in addition to, and not during, the

regular instructional program. N.J.A.C. 6A:14-4.4.

157. The proposed IEP offered speech-language services during and

not in addition to the regular instructional program.

158. The IEP was not reasonably calculated to enable G.A. to

receive educational benefit. 

COUNT V

Extended School Year Services

159. Plaintiffs repeat the allegations of paragraphs 1 through

158 as if fully set forth herein.

160. The right to FAPE includes the right to have the school

district evaluate the need for ESY services correctly and

fairly.

161. G.A. required ESY services for the summer 2010.

162. RVBOE failed and refused to consider ESY for summer 2010.

163. The September 7, 2010 IEP implementation date meant G.A.

would wait six months to receive special education and/or

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related services. 

164. G.A. was denied his statutory right to have an IEP

implemented within 90 days, which would necessarily have

been in the form of ESY since the school year had ended

before GA was classified.

165. Defendants failure to offer timely implementation of the IEP

deprived G.A. of educational opportunity, and is alone

sufficient basis to find G.A. was denied a FAPE.

166. G.A. requires ESY services for the summer 2011.

167. RVBOE refused to consider G.A.’s need for ESY services for

summer 2011 despite having testified ESY services could not

be contemplated a full year in advance and would be

considered at a later date during the year.

168. RVBOE refused to accept progress reports from G.A.’s

treating therapists in determining the need for summer 2011

ESY services.

169. Defendants violated Plaintiffs rights under state and

federal laws and deprived G.A. of a FAPE in refusing to

provide ESY services.

Count VI

Independent Evaluation

170. Plaintiffs repeat the allegations of paragraphs 1 through

169 as if fully set forth herein.

171. Evaluations are among the services necessary for the

preparation of an IEP, and when there is disagreement with

the school district relative to an evaluation, a parent may

request an independent evaluation. N.J.A.C. 6A:14-2.5(c).

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172. At the July 16, 2010 IEP meeting, L.A. requested an

occupational therapy evaluation. 

173. RVBOE declined to conduct the evaluation, but advised it

could be conducted once GA started the program in September

if it were then deemed necessary. 

174. By letter dated July 21, 2010, L.A. requested an independent

occupational therapy evaluation. 

175. RVBOE violated the procedures set forth in N.J.A.C. 6A:14-

2.5(c)(1) by failing either to notify the parents in writing

within ten days of its intent to itself conduct the

requested evaluation, or to initiate a due process hearing

within twenty days to prove the requested evaluation is not

warranted. 

176. Plaintiffs obtained an independent occupational therapy

evaluation and sought reimbursement at the due process

hearing, which request was denied.

177. Defendants violated Plaintiffs rights under federal and

state law and deprived G.A. of a FAPE.

COUNT V11

Reversible Error

178. Plaintiffs repeat the allegations of paragraphs 1 through

177 as if fully set forth herein.

179. A court’s inquiry in suits brought under §1415(e)(2) is

twofold. First, has the state complied with the procedures

set forth in the Act? And second, is the IEP developed

through the Act’s procedures reasonably calculated to enable

the child to receive educational benefits? See Rowley.

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180. The ALJ committed reversible error in failing to address or

consider whether the procedural violations, either

individually or taken together, resulted in loss of

educational opportunity and constitute denial of a FAPE.

181. While the ALJ acknowledged RVBOE was delinquent in timely

convening the initial evaluation meeting, delinquent in

timely convening the eligibility/IEP meeting, and delinquent

in timely providing the parents with the proposed IEP; the

decision was silent as to defendants many other procedural

violations including, failure to implement the IEP within 90

days (implementation date was 187 days post referral),

predetermining the IEP, failure to allow observation of the

proposed program, failure to involve the parents as members

of the IEP team, failure to have available a continuum of

placements, failure to consider ESY, failure to conduct

comprehensive evaluations, failure to respond to a parental

request for independent evaluation, and failure to offer an

interim public placement pending outcome of the dispute. 

182. Several of the procedural violations alone warrant a finding

FAPE was denied; taken together the violations are nothing

short of egregious. 

183. The ALJ committed reversible error in failing to address or

consider whether the IEP, despite not having been developed

through the Act’s procedures, was reasonably calculated to

enable G.A. to receive educational benefits.

184. The ALJ committed reversible error in wholly failing to

consider whether the proposed placement was the LRE

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appropriate for G.A.

185. The ALJ committed reversible error in failing to acknowledge

that the proposed program is a hybrid program, and failed to

evaluate whether G.A. required this more restrictive

placement. 

186. The ALJ committed reversible error in failing to acknowledge

that the proposed program employs use of Rifton chairs, and

failed to evaluate whether categoric use of Rifton chair

chairs render the placement too restrictive for G.A. Rifton

Chairs are specialized chairs for the disabled that are

restrictive by design, having table level arms and flared

legs. In some cases, courts have held use of Rifton Chairs

violate the constitutional right to be free from

unreasonable restraint.

187. The ALJ committed reversible error in excluding evidence

relative to Rifton Chairs.

188. The ALJ erred in failing to analyze or address Defendants

failure to consider a continuum of placements in developing

the IEP, including placement in a general education program

in a typical preschool.

189. The ALJ committed reversible error in determining the

proposed placement was appropriate, and simultaneously

ordering the parties reconvene to create an IEP. It is

fundamental that placement cannot be determined prior to

development of the IEP. 

190. The ALJ committed reversible error in determining the

proposed IEP offered a FAPE absent provision of a hearing

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aid.

191. The ALJ committed reversible error in determining GA

requires a hearing aid, but that RVBOE is not obligated to

provide it.

192. Audiology is a related service and includes selection and

fitting of an appropriate aid. 34 CFR §300.34(c)(1). 

193. The ALJ committed reversible error in determining that an

“appropriate aid” does not include a hearing aid. 

194. The ALJ erred in determining a desk level speaker unit is

alone sufficient to meet G.A.’s hearing needs. 

195. The ALJ committed reversible error in determining the

proposed IEP offered a FAPE absent necessary periodic

audiograms.

196. As a matter of law, the ALJ erred in determining a FAPE was

offered while simultaneously ordering RVBOE to revise (some

8 months later) therapy services to be provided individually

or in a small group not exceeding two students. The ordered

revision necessitates a finding that the proposed IEP was

inappropriate, and thus FAPE was denied.

197. The ALJ applied the wrong legal standard and committed

reversible error in accepting defendants testimony that the

group size would “probably have been only two or three

students.” In determining the appropriateness of the IEP,

The ALJ erred in failing to focus inquiry on the IEP

actually offered rather than the one it could have offered. 

Lascari v. Ramapo Indian Hills Regional School District, 116

N.J. 30, 46-47 (1989).

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198. The ALJ erred in failing to address or consider that the

proposed IEP was deficient and violates N.J.A.C. 6A:14-4.4

because G.A. would be removed from the regular instructional

program to receive speech-language services, rather than

receiving these services in addition to the regular

instructional program.

199. The ALJ committed reversible error in failing to determine

FAPE was denied, but awarding partial reimbursement and

requiring substantive revision of the IEP.

200. The ALJ committed reversible error in failing to determine

G.A. was entitled to ESY services for summer 2010. 

201. The ALJ apparently agreed the proposed IEP should have

offered these services having awarded reimbursement of

speech-language services for June 2010 and July 2010, but

erred in not finding Defendant’s substantive failure to

provide ESY services thereby denied G.A. a FAPE. 

202. A public agency may not limit ESY services to particular

categories of disability, or unilaterally limit the type,

amount, or duration of those services. See 34 CFR

§300.309(a)(3).

203. The ALJ erred in limiting reimbursement to speech-language

therapy for June and July; reimbursement should also have

been awarded for summer audiology services, transportation,

and program. 

204. The ALJ erred in failing to address or consider whether

Defendants failure to conduct evaluations sufficiently

comprehensive to identify all education and related service

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needs resulted in denial of FAPE. 

205. The ALJ found G.A. requires occupational therapy services,

and directed the parties to create a new IEP including this

related service; but erred in failing to find G.A. was

denied a FAPE.

206. The ALJ erred as a matter of law with respect to

reimbursement of the independent Occupational Therapy

Evaluation. 

207. As a matter of law, the ALJ erred in finding that Plaintiffs

filing a due process petition obviates Defendant’s

obligation to comply with the statutory directives regarding

e parental request for independent evaluation.

208. Even if such a holding were sound, the ALJ erred in

determining the district had 20 days to provide written

response to a parental request for an independent evaluation

rather than 10 days. The law allows 20 days for a district

to initiate a due process hearing to quash such a request,

but only 10 days to advise parents whether it will elect to

itself conduct the requested evaluation. 

209. As a matter of law, the ALJ erred in determining the filing

of a parental request for due process deprived RVBOE of

meaningful opportunity to conduct an occupational therapy

evaluation. 

210. The ALJ applied the wrong legal standards, and wholly failed

to address or consider many issues in the case.

211. The ALJ erred in determining the facts, and assumed facts

not in evidence.

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212. The ALJ’s decision was not regularly made.

213. The ALJ erred in disallowing G.A.’s grandfather to assist as

an advocate at the due process hearing.

214. The ALJ excluded from evidence the most recently conducted

state monitoring report which revealed a history and pattern

of IDEA violations.

215. The ALJ excluded testimony and documentary evidence

pertaining to the resolution meeting.

216. The ALJ refused plaintiffs submission of a motion for

summary decision upon defendant resting its case.

217. Plaintiffs incurred substantial expert witness fees in

putting on a case that could properly have been decided on

the motion.

218. The ALJ refused to admit into evidence the occupational

therapy evaluation unless the doctor who conducted the

evaluation testified at trial. Plaintiffs incurred

substantial expert witness fees in order that the report be

admitted.

219. The ALJ permitted Defendant a windfall by not requiring

Defendant to belatedly pay expenses which it should properly

have paid under state and federal law. Defendant has been

unjustly enriched.

220. The ALJ erred in failing to award Plaintiffs “prevailing

party status” and characterizing Plaintiffs petition as

DENIED, despite the awarding reimbursement for speechlanguage testing and speech therapy services rendered in

June & July 2010 and ordering creation of a new IEP

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requiring substantive changes regarding provision of related

services.

221. The ALJ applied the wrong legal standard relative to

provision of transportation.

222. The ALJ’s decision was not regularly made. The ALJ erred in

sustaining Defendants’ many trial objections, which excluded

relevant testimony and documentary evidence, prevented

L.A.’s use of the New Jersey Administrative Code to refresh

recollection in answering questions on cross examination,

and deprived Plaintiffs of their right due process by

refusing to accept a written motion for summary decision

after Defendant rested its case. The ALJ also erred in

refusing to sequester DEGEATANO during testimony of other

witnesses for the defense.

223. The audio recordings of the hearing reflect the aforesaid

irregularities, and further reveal objections made only

after a RVBOE witness were asked pointed questions followed

by long pauses punctuated by an objection to avoid answering

the question, which the ALJ improperly sustained. The ALJ

also overruled plaintiffs objections to attacking its expert

witness based on a HIPPA violation, which assertion was

absurd. 

224. The decision is reasoned on an erroneous determination of

facts which are not supported by the record.

225. The decision of the ALJ is not supported by applicable law,

and is arbitrary and capricious.

COUNT VIII

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Parental Damages

226. Plaintiffs repeats the allegations of paragraphs 1 through

225 as if fully set forth herein.

227. IDEA includes specific rights for parents or legal guardians

of children with disabilities. Parent rights are procedural

safeguards for special education programs.

228. Defendants systematically and intentionally delayed the

eligibility and classification process to prevent

observation of the proposed program. 

229. The ALJ found RVBOE was delinquent in timely holding the

evaluation meeting, delinquent in timely classifying GA, and

delinquent in timely providing GA’s parents with a proposed

IEP, however, the decision was silent as the significance of

these and other violations as relates to the parents right

to meaningfully participate in development of the IEP.

230. Defendants deprived the parents of their statutory right to

observe the proposed program or other program options.

231. Defendants deprived the parents of their statutory right to

review all evaluation reports in advance of the eligibility

meeting.

232. Plaintiffs were deprived of their statutory right to have an

independent occupational therapy evaluation at public

expense.

233. Plaintiffs were deprived of their statutory right to

participate development of the IEP.

234. Defendants failed to inform plaintiffs of their right to

seek public funding for a private preschool program.

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235. Defendants failed to inform plaintiffs of their right to

seek public funding for assistive technology devices and

services.

236. Defendants pre-determined placement in an in-district

program prior to development of an IEP, and prior to

conducting any evaluations.

237. BEIERLE came to the eligibility meeting with an already

prepared pre-determined IEP; BEIERLE testified this is

standard operating procedure. That defendants violate the

rights of all parents cannot serve as justification to

violate the rights of G.A.’s parents. 

238. Defendants intentionally draft vague IEPs enabling them to

later re-interpret the provisions as they see fit. 

239. The aforesaid violations resulted in gross violations of

parental rights and plaintiffs are entitled to compensatory

damages.

240. Defendants actions were and continue to be abusive toward

plaintiffs.

241. Despite the ALJ’s April 14, 2011 order that the parties meet

to create an IEP for the 2010-2011 school, RVBOE relies upon

the verbiage of the decision in refusing to create an IEP

with the parents as participants, and has instead used it as

a weapon to continue to mis-treat G.A.’s parents and deprive

them of their rights. 

242. RVBOE refused to include occupational therapy goals in the

new IEP despite the ALJ’s ruling that occupational therapy

services be provided. 

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243. RVBOE refused to conduct a cognitive test or a diagnostic

neurological evaluation, despite the occupational therapy

evaluation report indicating G.A. suffers from the

neurological condition dyspraxia. 

244. Defendants refused to include audiology services despite

G.A.’s need for periodic audiograms.

245. Defendants refuse to allow independent cognitive or

neurological evaluations at public expense.

246. Plaintiff L.A. has suffered emotional distress as a result

of defendants actions, wether those action be negligent or

intentional.

247. Acting under color of law, Defendants DEGAETANO and BEIERLE

have deprived Plaintiffs of their rights under state and

federal law.

248. Defendants violated Plaintiffs rights under IDEA, the NJ

parallel statute, and section 1983.

249. The Supreme Court of the United States has held that the

importance of the procedures set forth in IDEA cannot be

gainsaid. The Third Circuit has held damages are not

available under section 1983 in IDEA cases because the IDEA

provides a comprehensive scheme; however, regardless of how

comprehensive that scheme may be, it is of no value when NEW

JERSEY fails or refuses to enforce the statute. 

250. NEW JERSEY has encouraged and empowered school districts to

violate the IDEA.

251. NEW JERSEY violated IDEA by removing from it’s parallel

statute the procedural safeguard regarding a students

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interim public placement when the disputed IEP involves

initial entry into public school. 

252. NEW JERSEY failed to render a decision within 45 days after

conclusion of the resolution period.

253. NEW JERSEY failed to enforce the IDEA and its own parallel

statute.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the Court:

(A) Order the preparation and filing of the administrative

record, as necessary;

(B) Receive and consider the audio CD’s of the record of

the administrative hearing;

(C) Receive and consider the submission of additional

evidence to supplement the administrative record;

(D) Award tuition reimbursement for the pendency placement

at TBE;

(E) Award reimbursement of Plaintiffs’ education,

evaluation, related service, transportation, and

assistive technology device and service expenses

incurred with respect to providing GA with private

educational placement and related services during

summer 2010, the 2010-2011 school year, and summer

2011;

(F) Award to Plaintiff G.A. compensatory education and

related services;

(G) Direct RVBOE to place G.A. in a regular education

preschool program for the 2011-2012 school year;

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(H) Issue a declaratory judgment that Defendants have

violated Plaintiffs’ rights as set forth;

(I) Award to the Plaintiffs costs, expenses, expert witness

fees and attorneys’ fees incurred in litigating the

administrative proceeding pursuant to 20 U.S.C. §1415;

(J) Award to the Plaintiffs L.A. and A.A. compensatory

damages pursuant to IDEA and/or 42 U.S.C. §1983.

(K) Award to the Plaintiff L.A. damages for intentional

infliction of emotional distress;

(L) Award to the Plaintiff L.A. damages for negligent

infliction of emotional distress;

(M) Award to the Plaintiffs punitive damages;

(N) Award Plaintiffs costs, expenses and attorneys’ fees,

including pre-judgment and post-judgment interest,

incurred in connection with litigating this action,

pursuant to 20 U.S.C. §1415; and

(O) Award Plaintiffs all such other and further relief as

the Court deems just and proper.

JURY DEMAND

Pursuant to Fed. R. Civ. P. 38, Plaintiffs demand a trial by jury

of all issues so triable.

Dated: June 30, 2011 Respectfully submitted:

s/ Lori E. Arons 

Lori E. Arons, Esq. 

One University Plaza, Ste 514

Hackensack, NJ 07601

Loriarons@aol.com

201-388-9533

Counsel for Plaintiffs

G.A., L.A. and A.A.

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VERIFICATION AND CERTIFICATION PURSUANT TO L. CIV. R. 11.2

I hereby certify that, to the best of my knowledge,

information and belief formed after a reasonable inquiry, this

action is not be presented for any improper purpose; the claims,

defenses and other legal contentions are warranted by existing

law; and the allegations and factual contentions have evidentiary

support.

s/ Lori E. Arons 

Lori E. Arons, Esq. 

I hereby certify that the matter in controversy is not the

subject of any other court, arbitration or administrative

proceeding.

s/ Lori E. Arons 

Lori E. Arons, Esq. 

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