The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
A.Z., the mother of M.Z., a disabled 9 year old boy, has sued the Mahwah Township Board of Education alleging violations of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act of 1973 and the New Jersey Special Education Law, N.J.S.A. 18A:46-1 et seg. and the New Jersey Special Education Administrative Code, N.J.A.C. 6A:14-1.1 et seg. A.Z. claims that the Mahwah Township Board of Education did not provide M.Z. with a free and appropriate public education ("FAPE") in the least restrictive environment ("LRE") as required by the IDEA. Currently before the Court are a summary judgment motion by the plaintiff and a cross-motion for summary judgment by the defendant, based on rulings by Administrative Law Judge Jesse H. Strauss. On March 30, 2004, Judge Strauss denied as untimely A.Z.'s demand for reimbursement of M.Z.'s private school tuition for the 2002-2003 school year, and on July 6, 2004, Judge Strauss granted A.Z.'s demand for reimbursement of M.Z.'s private school tuition for the 2003-2004 school year. This litigation and these summary judgment motions followed.
This Court has jurisdiction pursuant to 20 U.S.C.A. § 1415(i)(2)(A), which allows any party who has been "aggrieved by the findings" of IDEA administrative procedures "the right to bring a civil action . . . in a district court of the United States, without regard to the amount in controversy." 20 U.S.C.A. § 1415(i)(2)(A).
In an IDEA case, this Court is required to give the factual findings of the administrative law judge a "modified version of de novo review." L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir. 2006). Under this standard, the Court gives "due weight" to the determinations of the administrative law judge. Board of Educ. of Hendrick Hudson Central School Dist., Westchester County v. Rowley, 458 U.S. 176, 206 (1982). However, the Court is not required to accept the findings of the administrative law judge, Carlisle Area School v. Scott P. By and Through Bess P., 62 F.3d 520, 529 (3d Cir. 1995), as long as the Court "fully explain[s] its reasons for departing from the state decision," S.H. v. State-Operated School Dist. of City of Newark, 336 F.3d 260, 271 (3d Cir. 2003).
In the fall of 1999, when M.Z. had just turned three years old and was in preschool, A.Z. brought M.Z. to the Center for Child Development and Wellness ("CCDW") in Ridgewood, New Jersey for an evaluation. A.Z. stated that she was concerned about M.Z. because he had exhibited unclear speech and drooled excessively. CCDW diagnosed M.Z. with moderate expressive language deficits and mild to moderate articulation deficits. In December 1999, A.Z. wrote to the Mahwah school district to request an evaluation of M.Z. by a Child Study Team ("CST") in order to determine whether M.Z. was eligible for special education programs and services through the school district. The Mahwah Board of Education (hereafter, "Board") convened a CST and conducted numerous evaluations over the next few months, but did not find that M.Z. was eligible for any preschool special education services. During M.Z.'s second year of preschool, A.Z. brought M.Z. for an evaluation at the Pediatric Otolaryngology Department of the NYU School of Medicine, where M.Z. was diagnosed with an articulation disorder associated with oromotor weakness. Speech therapy and oromotor exercises were recommended to address M.Z.'s disorder.
When M.Z. started kindergarten at the Betsy Ross School in Mahwah Township in the fall of 2001, A.Z. requested another evaluation. This time, the Board found that M.Z. was eligible for special education in the form of speech and language services. The Board developed an Individualized Education Program ("IEP") for him. An IEP is a written statement that includes the child's present condition, the annual goals for the child and how those goals will be measured, and what special education services the district will provide. 20 U.S.C. § 1412(d)(1)(a)(I). The IEP indicated the M.Z. would receive 30 minutes of speech therapy per week, with re-evaluation in one year.
In April, 2002, dissatisfied with her son's progress, A.Z. requested another evaluation. Another CST was convened, and after numerous evaluations the Board found that M.Z. had ADHD, fine and visual motor coordination disorder, functional gross motor skills but with deficits in higher level balance and coordination, low-normal muscle tone, speech and language deficits, and articulation deficits. However, the Board's learning consultant found that M.Z. was able to manage grade-level tasks. An IEP was written to address M.Z.'s needs during the coming 2002-2003 school year at Mahwah School District. The IEP proposed that M.Z. be moved into the first grade at the Betsy Ross School, where he would be placed in separate special education classes for four forty-minute sessions each school day, and would receive two thirty-minute speech and language sessions weekly. The IEP did not include any physical therapy nor occupational therapy, although both had been recommended by the CST evaluations. At a meeting about the IEP with the CST on June 21, 2002, M.Z.'s parents declined to agree to the IEP -- instead, they told the CST that they wanted M.Z. to repeat kindergarten rather than push him into first grade only to separate him from the mainstream students for approximately 60% of every class day. The CST disagreed, stating that "[M.Z.'s] deficits do not appear to be remediated through repetition of Kindergarten curriculum and he would benefit from special education modifications. He should proceed with age-peers and receive academic support." Individual Educational Program (IEP) Components Report at 20 (June 21, 2002).
A.Z. stated in her complaint that she attempted to contact CST members numerous times over the summer of 2002 in order to discuss the best course of action for M.Z., but she contends that her telephone calls were never returned. (Complaint ¶¶ 32, 34, 35.) In August, she and her husband decided that M.Z. should repeat kindergarten, and they enrolled him in St. Paul's, a private parochial school, for the 2002-2003 school year. In her amended request for a due process hearing before the Office of Administrative Law, A.Z. sought reimbursement for the cost of St. Paul's for the 2002-2003 school year.
The administrative law judge ("ALJ") found that the M.Z.'s parents placed him in St. Paul's "unilaterally," without the consent or referral of any public agency. A.Z. o/b/o M.Z. v. Mahwah Twp. Bd. of Educ., N.J. Office of Admin. Law Dkt. No. EDS 9972-03 at 3 (March 30, 2004). The ALJ also found that M.Z.'s parents did not give written notice to the school district that A.Z. was going to be attending St. Paul's for that year, nor did they request tuition reimbursement for 2002-2003 school year at the June 21, 2002 meeting with the CST. Id.
A. Public Funding of Private School Placement
If the state does not provide a FAPE to a child with a disability, it may be required to reimburse the private school costs of an appropriate education for that child. T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir. 2000). Under the IDEA, "if such children are placed in, or referred to, such schools or facilities by the State or appropriate local educational agency," the special education and related services are provided at no cost to their parents. 20 U.S.C. § 1412(a)(10)(B)(i). However, if such children are placed in private schools and facilities without the consent or referral of the public agency, "a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or ...