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T.R. v. Kingwood Township Board of Education

January 6, 1999

T.R. AND E.M.R., ON BEHALF OF N.R., A MINOR,
PLAINTIFFS,
V.
KINGWOOD TOWNSHIP BOARD OF EDUCATION,
DEFENDANT.



The opinion of the court was delivered by: Cooper, District Judge

FOR PUBLICATION

MEMORANDUM OPINION

This matter comes before the Court on the cross-motions by plaintiffs and defendant for summary judgment. *fn1 For the reasons stated in this Memorandum and Order, the Court denies plaintiffs' motion and grants defendant's motion.

BACKGROUND

This case arises under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C. § 1415(e)(2). Plaintiffs T.R. and E.M.R. ("the parents") are the parents of N.R., who was born on September 7, 1991. (Compl. ¶ 5; Certif. of Leslie Callanan (hereinafter "Callanan Certif.") ¶ 3.) N.R. was classified as preschool handicapped in 1994. (Compl. ¶ 7; Callanan Certif. ¶ 8.) During the 1994-95 school year, N.R. was placed with his parents' consent in a preschool handicapped program and received speech, occupational, and physical therapy. (Id.)

In the spring of 1995, defendant Kingwood Township Board of Education ("the Board") proposed an Individualized Education Program ("IEP") for the 1995-96 school year under which N.R. would be placed in a preschool class at the Kingwood School; the class was to comprise an equal number of disabled and non-disabled children. (Callanan Certif. ¶ 8.) The parents rejected the placement and enrolled N.R. at Village Montessori School, a private preschool, in September 1995. (Compl. ¶ 11; Callanan Certif. ¶ 8.) They then filed for due process. In November 1995, the Board and the parents entered into a settlement agreement. (Compl. ¶ 11; Callanan Certif. ¶ 9.) Under the settlement, the parents agreed to pay Village Montessori School's tuition and provide for N.R.'s transportation. (Compl. ¶ 17.) They also promised to help develop an IEP for the remainder of the school year. (Tr. 1 at 46.) *fn2 The Board agreed to provide speech, occupational, and physical therapy and to hire an educational consultant, Dr. Theresa Bologna ("Dr. Bologna"), who was recommended by the parents. (Id. at 44.)

On January 26, 1996, the director of Village Montessori School informed T.R. and E.M.R. that N.R. would not be accepted for summer or fall classes. (Compl. ¶ 19.) The parents decided that it was in N.R.'s interest to transfer him to a new school as soon as possible. (Id.) Upon learning of the parents' plans to move N.R., the Board again proposed that N.R. be placed in the Kingwood School. (Ex. R-11: Ltr. from Gaetano M. DeSapio, Esq. to Michaelene Loughlin, Esq. dated 3-28- 96.) On March 29, 1996, the parents moved N.R. from Village Montessori School to Rainbow Rascals Learning Center ("Rainbow Rascals"). (Compl. ¶ 11.) The Board provided N.R. with speech, occupational, and physical therapy at Rainbow Rascals until June 21, 1996. (Callanan Certif. ¶ 11.)

During this period, the parties worked on an IEP that would cover the remainder of the 1995-96 school year. The parties held meetings on April 23, 1996 and May 21, 1996. (Compl. ¶ 26.) The parents did not sign the proposed 1995-96 IEP because it provided for a termination date of June 21, 1996 for the related services. (Id. ¶ 27.) The 1995-96 IEP draft did, however, reflect the considerable input of the parents and their consultant Dr. Bologna. (See Tr. 1 at 53-55; Tr. 3 at 92-93; Tr. 7 at 7.)

The parents also requested that the Board discuss the parents' desire to have N.R. participate in an extended school year program. (Compl. ¶¶ 72-78.) Dr. Eugene Bradford, the Interim Superintendent of Schools, ("Dr. Bradford") informed the parents that the decision would be made after the Board received the evaluations that were underway to determine whether N.R. would remain classified as handicapped. (Compl. ¶ 76.) Dr. Bradford wrote to the parents on June 6, 1996 to inform them that their request for an extended school year program had been denied because N.R.'s therapists did not believe that he would severely regress without a summer program. (Ex. R-15.) Dr. Bradford also stated that the parents could discuss the issue at a meeting with him, Dr. Leslie Callanan ("Dr. Callanan"), N.R.'s case manager, and Ms. Nelsen, the school's learning consultant. (Id.) T.R. presented his reasons why he believed N.R. should have a summer program at a meeting on June 10, 1996, but the Board did not modify its decision. (Tr. 3 at 113-14.)

Kingwood Township's Child Study Team ("CST") and the parents also met on June 18, 1996 to discuss the recently performed evaluations of N.R. During that meeting, the participants discussed the 1996-97 IEP for N.R. The CST conveyed its belief that N.R. had the readiness skills to begin kindergarten in September 1996. (Callanan Certif. ¶ 14.) During the summer of 1996, the parties continued to work on an IEP for N.R. for the 1996-97 school year. Dr. Callanan twice wrote the parents asking for their input concerning the proposed IEP goals and objectives. (Exs. P-29, P-30.) She also informed them that she was awaiting their response to the recommended placement of N.R. in Kingwood's kindergarten program. (Ex. P-29.) When Dr. Callanan finally received a response from the parents by letter dated July 29, 1996, (Ex. P-19), she incorporated the material into the draft IEP. (Tr. 1 at 71.)

A meeting to discuss N.R.'s 1996-97 IEP was held on August 2, 1996. At that meeting, T.R. and E.M.R. informed the school district that they did not plan to send N.R. to kindergarten at the Kingwood School in the fall; rather, they planned to have him attend preschool for another year. (Tr. 3 at 79.) After the parents rejected the proposed kindergarten placement, the Board drafted an IEP which provided for placement in Kingwood Township's preschool class, which contains an equal number of disabled and non-disabled children, and forwarded it to the parents by letter dated 8-16-96. (Id. at 83; Pls.' Br. at 12.) The parents rejected this placement by letter dated September 3, 1996, informing the district that N.R. would continue to be enrolled at Rainbow Rascals. (Ex. R-45: Ltr. from T.R. and E.M.R. to Gene Lennon, Chief School Administrator, Kingwood Township School.) They also requested that the district pay for Rainbow Rascals' tuition and provide the related services there. (Id.)

The Board filed for due process, seeking a determination that its 1996-97 IEP provided N.R. with a free appropriate public education ("FAPE"). (Callanan Certif. ¶ 16.) The parents cross-filed for due process and sought emergent relief requiring the district to provide therapy at Rainbow Rascals. T.R. and E.M.R. argued that under the "stay put" provision of N.J. Admin. Code § 6:28-2.7(i), Kingwood Township was "obligated to continue to provide the same services as were provided during the previous academic year." (Callahan Certif., Ex. B.) The ALJ found that the parents were not entitled to emergent relief because an IEP was not in place to which the "stay put" provision could apply. (Order of ALJ Joseph F. Martone dated 10-3-96 at 2.)

T.R. and E.M.R. next filed a motion for emergent relief directing that N.R. be provided with physical, occupational, and speech therapy during the pendency of the due process hearings. The ALJ found that a free appropriate public education was available to N.R. at the Kingwood School. (Callanan Certif., Ex. C: Order of ALJ Bruce R. Campbell dated 10-30-96 at 4.) The ALJ determined that the school district's responsibility to provide related services ended on June 21, 1996 and therefore denied the parents' motion for emergent relief. (Id. at 5.)

Subsequently, on March 13, 1997, the ALJ decided the parties' motions for due process. The ALJ found that Kingwood Township's kindergarten program provided a FAPE for N.R. in the least restrictive environment. (Opinion of ALJ Campbell dated 3-13-97 ("ALJ Op.") at 10.) The ALJ ruled that because the Board had offered N.R. a FAPE, the parents' decision to keep N.R. at Rainbow Rascals "is not a decision for which Kingwood should pay." (Id.) The ALJ further found that neither federal nor state law required the Board to provide services for N.R. at Rainbow Rascals because Rainbow Rascals is not a school as defined in N.J. Stat. Ann. § 18A:46-19.2. (Id. at 11.) The ALJ also ruled that N.R. was not entitled to a summer program because he would not experience significant regression. (Id. at 14, 16.) The ALJ also determined that any procedural deficiencies by the Board were de minimis and did not affect whether N.R. had been provided with a FAPE. (Id. at 14.) He noted that the parents' opinions were adequately presented to the Child Study Team. (Id.) Finally, the ALJ determined that N.R.'s 1996-97 IEP met the statutory requirements. (Id. at 13.) He also ruled that the parents were not entitled to reimbursement for evaluations performed by Dr. Theresa Bologna and Linda Rammler. (Id. at 15.)

T.R. and E.M.R. filed a Complaint in this Court on April 22, 1997 seeking judicial review of the ALJ's decision. They also applied for preliminary injunctive relief directing the Board to provide N.R. with speech, occupational, and physical therapy at Rainbow Rascals and at their home. This Court denied plaintiffs' application for a preliminary injunction by Memorandum and Order dated May 19, 1997. We found that the settlement agreement, which was the last IEP in place for N.R., provided that N.R. would attend Village Montessori School. (Mem. & Ord. at 13.) We noted that: (1) the Board did not agree with the parents' unilateral decision to transfer N.R. to Rainbow Rascals, and (2) the services delineated in the settlement agreement were tailored to coordinate with N.R.'s placement at the Village Montessorri School. (Id.) Accordingly, we found that an IEP was not in effect at the time of our decision. (Id. at 14.) We noted that the services provided in the settlement agreement therefore could not be carried forward to N.R.'s new school as a matter of "stay put" entitlement and consequently denied the application for an injunction. (Id.)

N.R.'s parents allege that the Board committed both procedural and substantive violations of the IDEA. The parents allege that the school committed a procedural violation of the IDEA by failing to ensure proper parental participation in the decisions regarding the extended school year program and the 1996-97 IEP. (Pls.' Br. at 12-13.) The parents also allege that the Board violated the IDEA in a substantive manner by failing to provide: (1) a "free and appropriate public education" to N.R. for the school year 1996-97; (2) an interim IEP; (3) a program for the summer of 1996; and (4) therapeutic services in his private school placement. (Compl. at 23.) We held oral argument in this matter on March 13, 1998. During the hearing, we granted the parents' request to supplement the record with various materials: (1) transcripts of various ...


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