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DEPTFORD TOWNSHIP SCHOOL DISTRICT v. H.B.

June 15, 2005.

DEPTFORD TOWNSHIP SCHOOL DISTRICT, Plaintiff,
v.
H.B., individually and by her parents and legal guardians, E.B. and P.B., Defendants, Counter-Claimants, and Third Party Plaintiffs, v. RAYMOND L. SHERMAN, in his official capacity as DIRECTOR OF SPECIAL EDUCATION, DEPTFORD TOWNSHIP SCHOOL DISTRICT, Third Party Defendant.



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

OPINION

Plaintiff Deptford Township School District brings this action against Defendants H.B., individually and by her parents and legal guardians, E.B. and P.B., pursuant to 20 U.S.C. § 1415(i)(2) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., as an appeal of the final administrative decisions of December 6, 2000, and January 3, 2001, entered by the Honorable John R. Futey, New Jersey Administrative Law Judge. Presently before the Court are cross-motions for reconsideration of this Court's September 29, 2004 Opinion and Order on the parties' cross-motions for summary judgment with respect to the issue of remedy. Also before the Court is Plaintiff Deptford Township School District's motion for summary judgment dismissing the counterclaims and third-party complaint brought against it by Defendants. For the reasons discussed below, this Court grants the motions of the parties for reconsideration in part and denies those motions in part. In addition, Deptford's motion for summary judgment is granted.

  I. BACKGROUND

  The facts of this case are well-known to the parties. The facts pertinent to the motions now before the Court are given here. This case involves Deptford Township School District's ("Deptford" or the "District") Individualized Education Plan ("IEP") for H.B., an autistic child, under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. The IEP in this matter was drafted in April 1999 for the 1999-2000 school year, covering the period from June 1999 to June 2000, by Janet Ulrich, case manager for the program at Child Development Center ("CDC"), the program in which H.B. was enrolled when she transferred to the district from Voorhees Public Schools on February 22, 1999. The original IEP was submitted to H.B.'s parents and called for H.B. to spend mornings at CDC, and afternoons at the school district's Pine Acres School in the Pre-School Handicapped ("PSH") class. H.B.'s parents, unhappy with the IEP offered by the District, unilaterally enrolled H.B. in the Goddard School, a private school, at the start of the summer of 1999.*fn1 On August 3, 1999, District Special Services Director Raymond Sherman, on behalf of the Deptford Township Child Study Team, requested a Mediation Conference to resolve the educational placement concerns for H.B. The parents of H.B. rejected the mediation and instead filed a petition for due process in October 1999 with Barbara Gantwerk, Director of the New Jersey Office of Special Education ("NJOSE"), which was then transferred to the Office of Administrative Law ("OAL").

  The Honorable John R. Futey, Administrative Law Judge ("ALJ"), after holding several days of due process hearings, found on December 6, 2000, that Deptford had failed to provide H.B. with a meaningful education by a preponderance of the credible evidence. (ALJ Decision, 12/6/00, at 34). The ALJ ordered Deptford to create a full day in-district program in a regular education class, incorporating applied behavioral analysis and discrete trial therapy ("DTT") techniques to be coordinated with the Partners in Therapy program. (Id.) Additionally, the ALJ ordered Deptford to bear the cost of reimbursing the B. family for all expenses incurred to date for providing H.B. with DTT from Partners in Therapy, and any future costs. (Id.) Until a program could be created, the ALJ ordered that H.B. was to be permitted to remain at the Goddard School so long as it remained educationally appropriate, and all services since her initial enrollment there in the summer of 1999 to her reintroduction into the Deptford program were to be borne by Deptford. (Id. at 35) In addition, the ALJ ordered Deptford to reimburse H.B.'s parents for all transportation costs incurred during her period of enrollment at Goddard School. (Id.) The ALJ also ordered Deptford to provide compensatory education in the areas of speech therapy and occupational therapy to H.B. from the point of her enrollment at Goddard School and for all times she was not given such services by the District. Furthermore, the ALJ ordered Deptford to reimburse Dr. Edna Barenbaum for the costs of her independent evaluation of H.B. The ALJ, however, denied the request for a comprehensive evaluation for physical therapy. Finally, the ALJ ordered H.B.'s parents to submit an itemized list of these expenses to Deptford and for Deptford to pay within 30 days of its receipt. (Id.) Thereafter, the ALJ rendered an Order dated January 3, 2001, which required, inter alia, that Deptford complete a psycho-educational evaluation, a speech and language evaluation, and an updated occupational evaluation by Dr. Barenbaum and ordered Deptford to pay the costs for transportation and all evaluations required on behalf of H.B., while permitting her to remain at the Goddard School's Chesterbrook educational facility. (ALJ Order, 1/3/01.)

  Plaintiff Deptford filed an appeal from the ALJ's decision of January 3, 2001 in this Court on February 15, 2001. Although Deptford's Complaint herein recited that it was an appeal from the January 3, 2001 decision, Deptford failed to seek a stay of that decision by the ALJ pending this appeal until May 29, 2001, which this Court then denied on September 20, 2001, and Deptford failed to address the underlying ALJ Order of December 6, 2000 at that time. Moreover, Deptford failed at that time to file the administrative record from which it took its appeal. Meanwhile, on June 15, 2001, the B. family moved out of the Deptford School District.

  On September 27, 2001, Plaintiff amended its Complaint to reflect that it was appealing from the ALJ decision of December 6, 2000. Thereafter, in an Opinion filed November 2, 2001, this Court granted the motion of third-party defendants Barbara Gantwerk, Director of the New Jersey Office of Special Education, and John Farmer, then Attorney General of New Jersey, to enforce the ALJ's decision and also denied Deptford's new motion for a stay of execution of judgment and of its obligation to advance the reimbursement to the providers as ordered by the ALJ, largely due to the delay of prior Deptford counsel to seek a stay of those obligations in a timely manner. (See Nov. 2, 2001 Opinion at 7-15.)

  On December 11, 2001, this Court entered an Order which addressed Plaintiff's motion for reconsideration with respect to the stay it sought of enforcement of the ALJ decision pending that appeal. This Court granted the stay with respect to compensatory educational services and other services not actually rendered by providers to H.B., but denied it with respect to reimbursement for services actually rendered by providers to H.B. as ordered by the ALJ on December 6, 2000 and January 3, 2001, insofar as those services were rendered through June 1, 2001. The December 11, 2001 Order also denied Defendants' cross-motion to hold Plaintiff in contempt. Finally, that Order required Plaintiff to immediately pay a sum of $88,090.61 to be used to pay for services already rendered, subject to reallocation depending upon the determination on the merits of the case.

  In an Opinion issued on February 15, 2002 on Plaintiff's motion for summary judgment, this Court affirmed the ALJ's Orders in part and reversed them in part, determining that Deptford Township had provided a free, appropriate public education ("FAPE") to H.B., but not in the least restrictive environment ("LRE"). (See Feb. 15, 2002 Opinion.) Deptford then filed a motion for reconsideration on June 11, 2002. In an Opinion dated March 27, 2003, this Court denied Plaintiff's motion for reconsideration, upholding its determination that Deptford had not provided H.B. a FAPE in the least restrictive environment. (See Mar. 27, 2003 Opinion.)

  By Order dated January 27, 2004, this Court bifurcated the case, splitting the IDEA appeal from the family's remaining counterclaims pursuant to 42 U.S.C. § 1983,*fn2 and the remedy issue was set down for a final hearing. Plaintiff filed a motion for partial summary judgment as to the remedy issue on February 6, 2004 and Defendants filed a cross-motion for summary judgment on March 4, 2004. The parties agreed that no further testimony of witnesses was required and that the remedy issue was ripe for final determination. This Court issued its Opinion and Order on September 29, 2004, which ordered that Plaintiff is entitled to reimbursement from Defendants in the amount of $52,370.00 and also that Defendants are entitled to an award of $52,800.00 for use in providing H.B. with compensatory occupational and speech therapies. The parties now seek reconsideration of this Court's September 29, 2004 Order.

  Moreover, Deptford filed its motion for summary judgment in early December 2004, seeking dismissal of Defendants' counterclaim and third party complaint. The Court heard oral argument on the motions for reconsideration and summary judgment on January 28, 2005 and February 10, 2005.

  II. DISCUSSION

  A. Cross-Motions for Reconsideration

  1. Standard of Review

  Local Civil Rule 7.1(i) of the United States District Court, District of New Jersey, governs the instant motion for reconsideration. The rule requires that the moving party set forth the factual matters or controlling legal authority that it believes this Court overlooked when rendering its initial decision. L. Civ. R. 7.1(i). Whether to grant reconsideration is a matter within the district court's discretion, but it should only be granted where such facts or legal authority were indeed presented but overlooked. DeLong Corp. v. Raymond Int'l, Inc., 622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Williams v. Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993). The purpose of a motion for reconsideration "is to correct manifest errors of law or to present newly discovered evidence." Harsco Corp. v. Zlotnick, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). A motion for reconsideration is improper when it is used solely to ask the court to rethink what it has already thought through — rightly or wrongly. Oritani Savings & Loan Assoc. v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990) (citing Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)), rev'd on other grounds, 989 F.2d 635 (3d Cir. 1993). Nor is reconsideration warranted when the moving party simply recapitulates the cases and arguments considered by the court prior to rendering its initial decision. Carteret Sav. Bank v. Shushan, 721 F. Supp. 705, 706-07 (D.N.J. 1989).

  2. The Merits of the Reconsideration Motions

  In its September 29, 2004 Opinion and Order, this Court determined that Plaintiff Deptford Township School District was entitled to reimbursement from Defendants in the amount of $52,370.00, consisting of $2,525.00 for the cost of Dr. Barenbaum's evaluation, $2,490.00 for the County Acres Nursery, $2,811.00 for the Chesterbrook Academy, and $44,544.00 for discrete trial therapy services. In addition, the Court determined that Defendants were entitled to an award of $52,800.00 for use in providing H.B. with compensatory occupational and speech therapies which Deptford was supposed to provide but did not.

  In its present motion, Deptford seeks reconsideration of this Court's decision to attribute the sum of $54,800.00 to speech and occupational therapies due H.B. Defendants have filed a cross-motion for reconsideration with respect to this Court's determination regarding Dr. Barenbaum's evaluations and H.B.'s placements at the County Acres Nursery and Chesterbrook Academy.

  With respect to the amount attributed to the speech and occupational therapies due H.B., this Court used the sum of $49,475.00 which was previously attributed to those services in this Court's November 2, 2001 Order and increased the hourly rate from $75/hour to $80/hour to reflect the prevailing current rate for these services. Deptford contends this calculation is incorrect. To address this, the Court will now undertake a detailed de novo review of the amount to be attributed to these services.

  The parties do not agree as to the number of weeks constituting H.B.'s school year for the 1999-2000 academic year.*fn3 Deptford takes the position that the appropriate number of weeks is forty-two (42), while Defendants argue that H.B. was on an extended academic year consisting of fifty-two (52) weeks. To resolve this disagreement, the Court looks to the record evidence before it. The 1999-2000 IEP prepared by Deptford for H.B., which formed the basis for the administrative due process hearings and the subsequent appeal before this Court, provided for a period of fifty-two weeks of instruction, covering the period from June 1999 through June 2000. (See IEP, 4/20/99, at 1.) Moreover, ALJ Futey recognized this in his December 6, 2000 Order, in summarizing the basic undisputed facts. (ALJ Decision, 12/6/00, at 3 ("an IEP was created for [H.B.] to encompass the period between June 1999 and June 2000"); id. at 7 ("the district had offered an extended school year for H.B."); id. at 24 ("the extended school year program in 1999").) In addition, ALJ Futey's Order clearly contemplated a fifty-two week academic year, as he ruled that H.B.'s parents should be reimbursed for the cost of educating their daughter at the Goddard School up through the time of his order, which included the summer months of 1999. (Id. at 31.) Thus, based on the record evidence, this Court concludes that the appropriate measure of time for the 1999-2000 academic year, as far as H.B. was concerned, was fifty-two (52) weeks.

  The parties are in agreement that Administrative Law Judge Futey's December 6, 2000 Order provided that H.B. was to receive compensatory education in the areas of speech therapy and occupational therapy as follows: six 15-minute small group speech sessions per week; one 15-minute session integrated speech and language instruction daily, amounting to a total of five 15-minute sessions per week; one 30-minute individual occupational therapy session per week; and one 30-minute session of occupational therapy in a classroom setting. (See IEP, 4/20/99, at 5; ALJ Decision, 12/6/00 at 35.)

  The parties are also in agreement that this amount of speech and occupational therapy would have been provided for the period of September 1, 2000 to December 31, 2000. However, this Court also recognizes that H.B. would likely have been on an extended school year at this time as well, which would have commenced in June of 2000. The Court thus now finds that H.B. was entitled to these services for the period of June 2000 through August 31, 2000 as well. During this time period, Defendants placed H.B. in the County Acres Nursery, a placement ALJ Futey never approved. As a result, in its September 29, 2004 decision, this Court ordered that Deptford be reimbursed in the amount of $2,490.00, representing the charges incurred for placing H.B. in this facility. However, the amount of speech and occupational therapies ordered by Judge Futey should have been supplied by Deptford from June 1, 2000 through December 31, 2000 as well.

  No occupational therapy was provided to H.B. between January 1, 2001 and June 15, 2001, the date on which the B. family moved out of the Deptford School District, although speech therapy was furnished. While Defendants argue that H.B. should have been provided with this service based on Judge Futey's December 6, 2000 Order, Deptford points to its January 2001 Occupational Therapy Evaluation of H.B. prepared by Yvonne Conrad, OTR, who determined that H.B. did "not demonstrate the need for occupational therapy intervention at [that] time." Deptford argues that because its evaluation determined that H.B. no longer needed occupational therapy, it is not responsible for the cost of providing that service to her. In essence, Deptford effectively proposed a new IEP for H.B. at this time, one lacking any form of occupational therapy. However, the District's act of proposing a new IEP abrogated the application of the stay put that was in effect as a result of Judge Futey's December 2000 Order. Allowing the District to take such unilateral action in order to avoid providing services it was otherwise obligated to provide, without first obtaining a stay, would "eviscerate the very protection Congress sought to provide" through the IDEA. Board of Educ. of the Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002). Until a new IEP is established by actual agreement between the parents and the school district or by an administrative decision upholding the ...


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