District Court rejects school district attempt to remedy deficient IEP through testimony at hearing

DUMONT BOARD OF EDUCATION v. J.T. (N.J. 5-10-2010): The New York State Review Office (SRO) often excuses inadequate IEPS by crediting the impartial hearing testimony of school district personnel as to what the district would have done for a child. Thus, district personnel have been able to, in effect, supplement an IEP and remedy its defects at hearing. In this New Jersey case, the Court refused to countenance such a tactic noting that

[w]ith respect to the sensory diet or sensory program, Dumont asserts that any deficiency in the IEP was obviated by testimony at trial that Tri-Valley would provide an adequate sensory
program for I.T.'s needs. (Def. Br. at 17.) Under the IDEA, however, "in determining whether an IEP was appropriate, the focus should be on the IEP actually offered and not on one that the school board could have provided if it had been so inclined." Lascari v. Board of Educ., 560 A.2d 1180, 1189 (N.J. 1989). See also D.C. v. Montgomery Twp. Bd. of Educ., No. 04-2851, 2005 WL 1229827, at *2 (D.N.J. 2005) (quoting Lascari). Whether or not Dumont would have offered I.T. additional sensory education services at a later date, the substance of the IEP with regard to her sensory education was limited to "sensory activities, tickles, hugging, deep pressure, physical touch," without any indication the numerous sensory stimulation techniques used at Tri-Valley and discussed in Dumont's brief, or any detailed program or reference to I.T.'s home sensory diet.