Moorestown family seeks district coverage for autistic son in private school

The family of an autistic teenager and the Moorestown School District are on opposing sides of a long and costly court battle that experts say could have an impact on children's access to special education in states beyond New Jersey.

In a strongly worded opinion this year, U.S. District Judge Renee Bumb held that Moorestown was wrong when it refused to provide an Individualized Education Plan (IEP) for the boy on the ground that he was not enrolled in a district school.

The district appealed Bumb's decision to the U.S. Court of Appeals for the Third Circuit in Philadelphia. An earlier ruling by a state court judge also held that the student should have been given an IEP.

The boy's family recently filed a petition seeking more than $200,000 from the district to cover its legal expenses, as directed by Bumb.

John Comegno, the district's attorney, said the case had cost Moorestown about $150,000 in legal fees. Because of the significance of the issues, Comegno said, his firm had provided an additional $125,000 in legal services free of charge.

Scott Duman, the boy's father, said he thought the district continued to fight the case because it wanted to put up barriers to special-education students enrolling.

Special-needs students "are expensive kids to educate, and [district officials] would be happy to have it be someone else's problem," said Duman, a software company executive.

"As a resident of Moorestown and a taxpayer, it's very aggravating to me, because they are spending money on legal fees that they could be spending money on providing for kids," he said.

An IEP is a document based on testing and other assessments in which a district sets forth its education goals for a special-needs student and the services it will provide to help the student reach those goals.

The Moorestown Board of Education prides itself on "the appropriate and successful" special programs it provides students, according to a statement provided by Comegno.

But Comegno disagreed that the law required the district to provide the same level of services, including an in-depth IEP, for a township resident who is not enrolled in a district school.

The district provided services to Duman's son at a less-intensive level while he attended a private school in Moorestown, but the family insisted on a full IEP.

Because of limited financial resources, Comegno said, the district provides needed services to eligible special-education students, but does not believe the child was entitled by law to what his family sought.

"This was not about shortchanging a particular student," Comegno said. "This was always about making sure in the big picture that services students were entitled to were properly" provided.

There are more than 216,000 students classified as "special needs" in New Jersey public schools, according to the state Department of Education. Of Moorestown's approximately 4,000 students, about 570 receive special-education services, according to the district. A Centers for Disease Control and Prevention study of 14 states has found New Jersey to have a particularly high rate of autism.

The Duman case has attracted attention in the special-education and legal communities.

"It is an important case because it could have broader impact beyond this particular child," said Ruth Lowenkron, a senior attorney with the Education Law Center of New Jersey.

Amelia Carolla, the Dumans' attorney, said that since the most recent decision, she has heard from special-education lawyers in other states who may use the ruling in their cases. It may have less application in Pennsylvania. Unlike New Jersey, Pennsylvania allows for dual enrollment in public and private school, said Gabe Labella, a lawyer with the Disability Rights Network in Philadelphia.

As a result of the litigation, the boy - now 15 and in the 10th grade - currently has a full-scale IEP with the district, and the district pays for him to attend the Y.A.L.E. School in Cherry Hill. Y.A.L.E. is a private school for students with social or learning disabilities.

He earlier attended school in the district and received district IEPs. In the fourth grade, his parents were not satisfied with the progress he was making, and the staff was unwilling to make changes in his program, Scott Duman said. So for the fifth grade, in the 2006-07 school year, the family moved him to Orchard Friends School, then located in Moorestown. The school later moved to Riverton. The family paid the tuition.

In the boy's second year at Orchard Friends, the family requested the district to convene an IEP meeting to explore education options, including possibly going back to a district school. The district responded that the boy was not enrolled with Moorestown and told the family to contact the Burlington County Educational Services Unit, which Comegno said the district contracts to evaluate nonpublic-school students.

The family continued to press for a full IEP from the district and eventually sought tuition reimbursement at Orchard Friends.

The district sent the family a public-school registration packet, but the parents refused to fill it out because they did not believe they had to do so to get an IEP. In addition, they were concerned that they might not get satisfaction from the district and that the boy would lose his spot at Orchard Friends.

In 2009, state Administrative Law Judge Donald J. Stein issued a decision that held that the district denied the child a "free and appropriate public education" in violation of the federal Individuals With Disabilities Education Act because it had refused to provide him with an IEP for three school years. Stein also ordered the district to pay tuition for those three years at Orchard Friends.

The district appealed, and the case subsequently was moved to federal court.

Pending appeal, the district worked up a IEP for the boy for the 2010-11 school year and the family and the district agreed to a placement at Y.A.L.E., with the district paying tuition.

With appeals ongoing, there is still about $60,000 in back tuition the district has not paid, according to Carolla, the family's attorney.

In her September decision, Bumb seemed to scoff at Moorestown's insistence that it was not required to produce an IEP for a child not enrolled in its schools.

"Surely, Congress did not intend to turn special education into a game of poker, where a school district does not have to show its cards until after the parents have taken the gamble of enrolling their child, and the child bears the risk of losing an appropriate education," she wrote.

There may soon be additional movement in the case. Duman said the Third Circuit recently had the parties take part in a mediation meeting, and the Moorestown school board may act on a settlement this week.

Bumb's decision could provide guidance on an often-confusing legal process, said Miriam Kurtzig Freedman, a Massachusetts-based special education law expert and author.

"Anything that helps clarify the confusion and onerous requirements can be helpful to school districts and parents alike," she said.