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S.D. v. MANVILLE BD. OF EDUC.

January 7, 1998

S.D., Individually and as Guardian Ad Litem of J.G., Plaintiff,
v.
MANVILLE BOARD OF EDUCATION, Defendant.



The opinion of the court was delivered by: PARELL

 PARELL, District Judge

 This matter comes before the Court on cross-motions for summary judgment by plaintiff S.D. and defendant Manville Board of Education ("Manville" or the "district"). For the reasons stated in this Memorandum Opinion, plaintiff's motion for summary judgment is denied without prejudice and defendant's motion for summary judgment is denied without prejudice.

 BACKGROUND

 Plaintiff S.D. is the mother of J.G., a sixteen-year-old boy who was first classified as neurologically impaired in July, 1987. (Aff. of S.D. PP 2, 5; Aff. of Walter A. Oberwanowicz, Director of Special Services, Manville Board of Education [hereinafter "Oberwanowicz Aff."], P 3.) J.G. attended first through fourth grades in a self-contained program in the district. (S.D. Aff. P 5.) In September, 1991, S.D. transferred her son to the Temple Christian School, where he repeated third and fourth grades. (Id.) J.G. returned to Manville in September, 1993, and was placed in a self-contained class for perceptually impaired children as a sixth grade student. (Id.) The following year, J.G. was placed in a resource center program at Manville High School. (Id.) This placement was continued through the 1995-96 academic year. (Id.)

 In September of 1995, S.D. obtained a letter from one of J.G.'s treating psychologists, Frank C. Calandra, Psy. D. Dr. Calandra recommended that S.D. consider residential placement for J.G. (S.D. Aff., Ex. B: Letter from Dr. Frank C. Calandra, Psy. D., to S.D. (Sept. 6, 1995).) S.D. also obtained a letter from J.G.'s physician, Dr. Joseph M. Rochford, who opined that J.G. "should be seen by DYFS and placed in a Residential School Program." (S.D. Aff., Ex. C: Letter from Dr. Joseph M. Rochford to "Whom It May Concern" (Sept. 13, 1995).) S.D. forwarded these letters to defendant's child-study team. (S.D. Aff. P 6.)

 An Individualized Education Program ("IEP") conference was held on June 18, 1996. (S.D. Aff., Ex. G.) The IEP called for an in-district placement with resource center support in English, math, history, and science. (Id.) In July, 1996, S.D. advised defendant that she felt that J.G. needed "out of district placement" and requested mediation. (S.D. Aff., Ex. I: Letter from S.D. to Director of Special Education (July 15, 1996).) The mediation was adjourned to allow defendant's child-study team to complete its evaluations of J.G. (Oberwanowicz Aff. P 12.) Subsequently, on October 22, 1996, another IEP conference was held. The IEP, which called for out-of-district placement, contained the following explanation: "at this time [J.G.'s] school setting needs to be highly structured and to provide a consistent behaviorally based management program. He also needs alternative teaching methods and materials. These services can best be provided in a special education school." (Oberwanowicz Aff., Ex. B: IEP dated Oct. 22, 1996.)

 S.D. retained the law firm of Sussan & Greenwald in December, 1996. By letter dated December 4, 1996, Mr. Theodore A. Sussan advised Mr. Oberwanowicz that "after reviewing pertinent documents, it appears to me, without question, that the appropriate placement for [J.G.] in the least restrictive environment is residential in nature. Therefore, please accept this letter as a request that [J.G.] be placed in an appropriate residential facility . . . ." (S.D. Aff., Ex. W: Letter from Mr. Sussan to Mr. Oberwanowicz (Dec. 4, 1996).) The district's attorney, Ms. Megan C. Seel, responded to Mr. Sussan's letter as follows:

 
I represent the Manville Board of Education. The Board has provided me with copies of your December 4 correspondence concerning [J.G.'s] placement. I will presume that you [sic] letter is meant to trigger the 30-day time limit under R. 6:28-2.7 for purposes of obtaining a due process hearing. It may be that this matter cannot be resolved outside of a due process hearing. However, it is the Board's desire to work with you and [J.G.'s] parents to find an appropriate solution to his educational requirements.
 
We will attempt to provide you with [J.G.'s] file prior to the Christmas vacation. Alice Kelly, the case manager, had arranged for intake interviews for [J.G.] at UMDNJ and at the Montgomery Academy for Wednesday or Thursday of last week. Mrs. [D.] did not bring [J.G.], nor did she attend these intake meetings. When the social worker called to find out why they had not attended, Mrs. [D.] said that all communication should go through her attorney. Would you please speak with her concerning these intake interviews. Perhaps they can be rescheduled with her cooperation.

 (Aff. of Megan C. Seel, Attorney for Defendant [hereinafter "Seel Aff."], Ex. B: Letter from Ms. Seel to Mr. Sussan (Dec. 9, 1996).)

 Ms. Seel communicated with Mr. Sussan again on December 20, 1996. This letter states in part: "I understand that Mrs. [D.] has made independent explorations of alternative placements for [J.G.]. Will you please provide me with copies of any materials she has received from those schools or institutions." (Seel Aff., Ex. C: Letter from Ms. Seel to Mr. Sussan (Dec. 20, 1996).) Ms. Seel made a similar request on January 16, 1997. (See Seel Aff., Ex. F: Letter from Ms. Seel to Mr. Sussan (Jan. 16, 1997) ("Please provide me with copies of all materials involving placements that your client feels would offer free appropriate public education for J.G. and the reasons why.").) It appears that the requested materials were never provided. (Oberwanowicz Aff. P 21.)

 S.D. filed a petition for due process on January 9, 1997. (S.D. Aff., Ex. Z: Petition for Due Process.) A trial was scheduled for January 21, 1997. (S.D. Aff. P 23; Oberwanowicz Aff. P 23.) On the trial date, the parties entered into a temporary settlement agreement. Manville agreed to withdraw its application to place J.G. on home instruction. (Oberwanowicz Aff., Ex. C: Special Education Settlement.) S.D. agreed to: (1) provide authorizations for the release of information regarding J.G. from various doctors and institutions; (2) obtain a prescription allowing the district to administer medication to J.G.; (3) allow J.G. to attend an intake interview at the CPC Behavioral Center; and (4) allow J.G. to be seen by the district's consulting psychiatrist. (Id.)

 During this time, S.D. filed an application on behalf of J.G. with The Pathway School ("Pathway") in Pennsylvania. (S.D. Aff. P 26.) Defendant learned of the application and offered to accompany S.D. to review the facility; S.D. declined this offer. (Oberwanowicz Aff. P 25.) S.D. was informed by letter dated January 30, 1997 that J.G. had been accepted into a residential program at Pathway. (S.D. Aff., Ex. CC: Letter from Louise Frederick, M.Ed., Admissions Director, The Pathway School, to Mr. and Mrs. [D.] (Jan. 30, 1997).) Mr. Sussan advised defendant of the acceptance by letter dated February 3, 1997. (S.D. Aff., Ex. FF: Letter from Mr. Sussan to Ms. Seel (Feb. 3, 1997).) On the same date, ...


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