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TOWNSHIP OF BLOOMFIELD BOARD OF EDUCATION v. STATE

September 21, 2005.

TOWNSHIP OF BLOOMFIELD BOARD OF EDUCATION, Plaintiff,
v.
S.C. o/b/o T.M.; STATE OF NEW JERSEY; DEPARTMENT OF EDUCATION FOR NEW JERSEY Defendants.



The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge

OPINION

This matter is before the Court upon: (i) the motion of the State of New Jersey and New Jersey Department of Education (together "State Defendants"), for dismissal of the Complaint against them; (ii) the motion of the Township of Bloomfield Board of Education (the "Board") for summary judgment against the State Defendants; (iii) the motion of the Board for summary judgment reversing the June 29, 2004 Order of the Administrative Law Judge; (iv) the motion of S.C. o/b/o T.M. ("S.C.")*fn1 for summary judgment affirming the June 29, 2004 Order of the Administrative Law Judge; and (v) the motion of S.C. o/b/o TM for imposition of sanctions on the Board or its attorneys.

  Bloomfield filed its Complaint appealing a decision of an Administrative Law Judge finding that Bloomfield is required to pay for T.M.'s residential placement. In its Complaint, Bloomfield also alleges that the State Defendants failed to promulgate an interagency agreement pursuant to the Individuals with Disabilities Education Act ("IDEA"), and that as a result of their failure to do so, Bloomfield has been burdened with the entire cost and responsibility of T.M.'s residential placement.

  I. Background

  This case arises under the IDEA, 20 U.S.C. § 1400 et seq., a statute through which Congress provides federal funds to state and local agencies to assist with the education of disabled children. Under the IDEA, a school district which receives federal assistance is required to provide a disabled child with a free and appropriate public education ("FAPE"). See 20 U.S.C. § 1412(1). Each state education agency ("SEA") or local education agency ("LEA") is responsible for devising an individualized education program ("IEP") for the child and providing other safeguards to protect the child's right to an FAPE. See 20 U.S.C. § 1415. In New Jersey, the LEA responsible for providing a FAPE is the local school district, in this case, Bloomfield. See N.J.A.C. 6A:14-1.1(d). The IDEA imposes procedural requirements on the states as well. IDEA procedures require that a child advocate have the opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child. See 20 U.S.C. §§ 1415(a) & 1415(b)(6). When a complaint is received under § 1415, a due process hearing may result via the states's administrative law process. See 20 U.S.C. § 1415(f)(1). In New Jersey, the agency designated to handle these complaints is the Office of Administrative Law, and an Administrative Law Judge ("ALJ") adjudicates disputes. An ALJ's decision may be appealed to a United States District Court. See 20 U.S.C. § 1415(i)(2).

  T.M. was born on May 24, 1990 and resides with his mother, S.C., in the Township of Bloomfield. The Bloomfield Board of Education operates a kindergarten through twelfth grade school district. T.M. is a student eligible for special education services under the IDEA (at the time of the filing of the Complaint, T.M. was thirteen years old). T.M.'s eligibility is based upon a classification of emotionally disturbed. T.M. has been multiply diagnosed,*fn2 has required numerous psychiatric hospitalizations and therapeutic services from a number of providers,*fn3 and has been on several psychotropic medications to address his behavioral and psychological instability. T.M. was classified as emotionally disturbed in January 1999 while attending the Franklin Elementary School ("Franklin") in the Bloomfield school district. While at Franklin, T.M. was cited by school administration and suspended on approximately thirteen occasions.*fn4

  In the Fall of 2000 T.M. entered Bloomfield Middle School ("BMS"). When T.M. entered BMS, S.C. requested a reevaluation of T.M. and a residential placement. Bloomfield denied S.C.'s request. T.M.'s disruptive behavior continued while he was enrolled at BMS*fn5 and in December 2002 T.M. was suspended and placed on home instruction. Bloomfield conducted a reevaluation of T.M. following his suspension.

  On or about January 18, 2001, while he was at BMS, Dr. Ellen Platt, a child analyst and psychiatrist, evaluated T.M. and recommended that T.M.: 1) be placed in a highly structured classroom setting with minimum distractions and behaviorally oriented techniques, 2) receive social skills training, and 3) receive intense psychotherapy with individual and family components. On or about October 10, 2001, S.C. signed an IEP that was prepared by the IEP team and she requested that it be implemented immediately. T.M.'s program included placement in the regular classroom with in and out of class support, modifications and supplemental aids and services. A modified behavior intervention plan was in place. However, T.M.'s behavior became more disruptive and inappropriate as the school year proceeded.

  In the fall of the 2002-2003 school year, T.M. exhibited increasingly disruptive and inappropriate behavior and the IEP team concluded that T.M. should be placed on home instruction pending the completion of child study team evaluations, including a psychiatric evaluation by Dr. Platt. S.C. consented to the evaluations and the home instruction placement pending receipt of the evaluations. A manifest determination was conducted at the hearing and it was determined that T.M.'s behavior was a manifestation of his disability. In or about December 2002, Dr. Platt conducted a psychiatric assessment as a part of the reevaluation and she found: 1) T.M.'s behavior had worsened, 2) T.M. had an affinity for sociopathic behavior, and 3) T.M. had a tremendous amount of rage. Dr. Platt also concluded that T.M. posed a threat to other children and needed to be placed in a highly restrictive program with 24-hour monitoring and supervision outside of the regular school setting. S.C. was advised to pursue intensive psychiatric treatment, monitoring, and follow-up for further diagnostic clarification and psychotropic medication.*fn6 At the reevaluation meeting in December 2002, Bloomfield offered the Forest Glen School, an in-district alternative day school, as an appropriate placement for T.M. However, S.C. did not believe that Glen-Forest was an appropriate placement for T.M., and in January 2002, she filed a request for mediation with the United States Department of Education Office of Special Education Programs ("OSEP").

  On February 5, 2003, Bloomfield and S.C. signed a mediation agreement, under which Bloomfield would look for an out of district placement and an IEP meeting would be held in May 2003 to determine the appropriate program for T.M. during the 2003-2004 school year. Pursuant to that agreement, Bloomfield tried to secure placements for T.M. However, on April 23, 2003, after an out of district placement was not located for T.M., S.C. filed a due process petition seeking, inter alia, a determination that a residential placement was appropriate and necessary under the IDEA. See 20 U.S.C. §§ 1400 et seq.

  On May 22, 2003, a reevaluation planning meeting was held. At the meeting, the IEP team again offered Forest Glen as a potential placement. S.C. refused to allow T.M. to be placed at Forest Glen and wanted to look for a more appropriate placement, but Bloomfield refused. Because S.C. and Bloomfield could not reach an agreement, T.M. remained on home instruction for the remainder of the school year. With no other potential placements offered,*fn7 S.C. independently pursued residential placements. By August 2003, T.M. had been accepted for a day placement at the High Point School ("HPS"), a state-approved school for emotionally disturbed children, located in Lodi, New Jersey. S.C. withdrew her due process complaint after Bloomfield agreed to place T.M. at HPS and conduct additional evaluations.

  At the time of the May 2003 IEP meeting, the Division of Youth and Family Services ("DYFS") determined that it would place T.M. in a residential facility provided S.C. consented, and that Bloomfield be responsible for the educational component while T.M. was placed at the residential facility. In accordance with DYFS's request, Dr. Ruth Rivera, Director of Special Services at Bloomfield, told DYFS that Bloomfield would adhere to DYFS's request. However, S.C. had already agreed to the placement of T.M. at HPS pending disposition of her due process petition. S.C. also requested that Bloomfield pursue a day placement for T.M. at East Mountain Youth Services ("EMYS") and informed Bloomfield that she was not interested in pursuing any of the other day placements that Bloomfield was considering. After EMYS determined that it did not have an appropriate placement for T.M., S.C. and Bloomfield agreed that T.M. would attend HPS and no further action would be taken to secure another day placement unless and until information was received that HPS was not appropriate.

  In September 2003, T.M. began attending HPS. At HPS, T.M. exhibited poor behavior, refused to do school work, threatened students and staff and was suspended on several occasions. It also became necessary to transport him to school individually. In October 2003, per S.C.'s request, Bloomfield conducted a functional behavior assessment of T.M. On November 18, 2003, S.C. and Bloomfield agreed to continue T.M.'s placement at HPS for the remainder of the 2003-2004 school year and to meet in February or March 2004 to consider the appropriateness of an extended school year for T.M. and whether a different placement should be sought for T.M. for the 2004-2005 school year. According to the agreement, S.C. agreed to withdraw her due process petition without prejudice. On or about February 2, 2004, before a behavior development plan could be developed for T.M., T.M. was expelled from HPS for threatening a teacher.*fn8 On February 18, 2004, an IEP meeting was held at HPS to determine T.M.'s next placement. At the meeting, Bloomfield offered IEPs for placement at Forest Glen or home instruction. S.C. rejected both the potential placement and home instruction option, and she requested an out of district placement for T.M.

  Because Bloomfield could not find an appropriate out of district placement, on or about March 12, 2004, S.C. filed a petition for a due process hearing with OSEP seeking the issuance of an order from the Office of Administrative Law directing Bloomfield to place T.M. in a residential facility. The matter was transmitted to OSEP in accordance with 20 U.S.C. § 1415 and 24 C.F.R. § 300.500 to 300.587, and Administrative Law Judge Margaret M. Hayden (the "ALJ") was assigned to the case. A hearing was held on April 8, June 9, 15 and 16, 2004.*fn9

  At the due process hearing, Bloomfield stated its position that T.M. required medical stabilization before he could be educated.*fn10 Many of the professionals who examined T.M. testified at the hearing and provided evidence detailing the history of T.M.'s treatment and condition. Dr. Platt testified that T.M. was unstable and needed around the clock treatment.*fn11 In December 2002, Dr. Platt examined T.M. and was surprised by the extent to which T.M.'s condition had deteriorated. Dr. Jack Goralsky, a clinical psychologist, testified that T.M. would need a residential placement with a solid psychiatric program and an educational component including social skills training, anger management and individual and family therapy. Dr. Goralsky also testified that even if T.M. required stabilization in a hospital, T.M. would need a residential educational placement subsequent to discharge. Both Dr. Platt and Dr. Goralsky testified that T.M. was not available for educational growth during periods throughout his childhood. Dr. Ellen Fenster-Kuehl, a clinical psychologist, also testified at the hearing. She recommended that T.M. be placed in a residential facility that included long term psychiatric care, intensive individual and group psychotherapy, a 24 hour day treatment plan including medication, drug monitoring and training for social skills. She further testified that T.M. would require long term care because T.M. would be unable to modulate his moods and behavior. Dr. Fenster-Kuehl concurred with Dr. Goralsky that even after being stabilized, T.M. would have to go to a residential program.

  Other professionals also concluded that T.M. needed a residential placement. Both Kristen Lowe, T.M.'s therapist, and Dr. Joy Robertson, T.M.'s psychiatrist, recommended a residential placement for T.M. On July 23, 2003, Dr. Allan J. Herman conducted an evaluation which revealed that T.M. needed to be placed in a residential treatment facility where he could receive both psychological treatment and an education. On August 20, 2004, Dr. Mercedes Paine performed an evaluation on T.M., and she recommended that T.M. be placed in a residential placement program that was highly therapeutic, structured, and one that could meet his emotional and educational needs. Michael Shave, the Senior Primary Therapist at the ...


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