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F.D. v. Holland Township Board of Education

August 25, 2006

F.D., S.D., ON BEHALF OF MINOR CHILD, K.D., ET. AL., PLAINTIFFS,
v.
HOLLAND TOWNSHIP BOARD OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Bongiovanni, United States Magistrate Judge

OPINION AND ORDER

This matter comes before the Court on Motion by Stacy Greenwald, Esq., attorney for Plaintiffs F.D. and S.D. on behalf of their minor child K.D. (hereinafter "Plaintiffs") seeking to introduce additional evidence in the appeal of the Hon. John R. Tassini's, Administrative Law Judge, decision denying Plaintiffs' tuition reimbursement under the Individuals with Disabilities Education Act (hereinafter "IDEA"), 20 U.S.C. § 1415(i)(2006). Defendant, Holland Township Board of Education (hereinafter "Defendant" or "BOE") opposes said Motion. Following oral argument regarding the admission of the additional evidence and for the reasons set forth below, the Motion to Introduce Additional Evidence is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn1

K.D. was born on April 20, 1991, and possesses superior intelligence, but also suffers a language-based learning disability, attention deficit disorder, and auditory processing deficits.

(ALJ Opinion at 4). In kindergarten, K.D. was classified as perceptually impaired, which enabled her to receive special education and related services. Id. In August 2003, following seven years of special education in the public school, Plaintiffs unilaterally withdrew K.D. from her Individualized Education Program (hereinafter "IEP") in the public school and placed her in the seventh grade at the private Cambridge School. Id. at 17. On February 18, 2004, Plaintiffs' attorney:

notified the [Defendant] of their claim that the [Defendant] should pay for placement in the private school, 'commencing immediately and continuing for so long as the placement remains appropriate.' By letter dated February 25, 2004, the [Defendant] denied the request, noting that the parties had agreed to an IEP providing for placement in the public school system and that the Department of Education had not approved the Cambridge School for placement of educationally disabled students. Id.

In sum, Plaintiffs "demanded that the [Defendant] pay the private school's tuition and the [Defendant] denied responsibility for the claim." Id. at 3. Consequently, on August 16, 2004, Plaintiffs filed a request for a due process hearing with the Department of Education, Office of Special Education Services. Id. Shortly thereafter, administrative hearings were held on February 15 and 16, April 12, and May 20, 2005. Id.

During the administrative hearings, Plaintiffs reserved "the right to call any employee from the Cambridge School." (Def. Br. at 8 (quoting Plaintiffs' Amended Joint Discovery Plan (May 23, 2006)). During the hearing on April 12, 2005, Plaintiffs' attorney announced she had "scheduled a representative from the Cambridge School" to testify on May 20, 2005. Id. (quoting Administrative Law Transcript of April 12, 2005). However, Plaintiffs failed to call any representatives from the Cambridge School to describe the educational program provided to K.D. on the scheduled date. (ALJ Opinion at 18). Plaintiffs rested their case having called three witnesses to testify: Mrs. D., K.D.'s mother; Dr. David Henley, Ph.D., a psychologist who had provided counseling and art therapy to K.D. since approximately November 2001; and Dr. Frank Ferrise, Psy.D., one of K.D.'s treating school psychologists with many years of experience in testing and counseling school children. Mrs. D. testified that K.D. learned to read and do homework by herself at Cambridge. She also testified that Cambridge School does not give grades and students pass according to "levels". Id. at 17. Mrs. D. further testified that K.D. was a happier child at Cambridge and that "a happy state of mind is conducive to educational progress." Id. at 20. Dr. Henley testified that he had seen the Cambridge School's promotional materials, knew of other children placed there, and approved of K.D.'s placement in the Cambridge School. However, he never visited the Cambridge School. Id. Dr. Ferrise testified that a smaller special education environment would be more supportive and helpful to K.D. with respect to her special needs. Id. at 12-13. Dr. Ferrise "candidly testified that he had 'heard' that the Cambridge School offered appropriate services" but could not attest to the appropriateness of that school. Id. at 20.

Thereafter, on October 6, 2005, Judge Tassini found:

Placement in the Board of Education's public school environment prevented her from progressing appropriately, and she required outof-district placement. Nonetheless, petitioners agreed to an IEP that continued her placement in the [Defendant's] public school system for the 2003-2004 school year.. In any event, the petitioners did not present sufficient competent and credible evidence that the Cambridge School provided an appropriate education program and services.. The [Defendant] should not be ordered to pay for the cost of the private school placement.

Id. at 15-16, 20.

The parties then requested transcripts of the hearing and also requested an opportunity to submit written briefs. Judge Tassini granted the requests, and briefs were submitted by the parties on September 2, 2005. Id. at 3. Shortly thereafter, Plaintiffs' attorney submitted a letter stating she believed she would admit three exhibits consisting of records from the Cambridge School. Id. The Defendant objected to these exhibits as Plaintiffs "had called no witness from the Cambridge School to provide a foundation sufficient for admission of that school's records or to otherwise describe the education and services it provided for K.D. ..." Id. at 4. On September 26, 2005, during a telephone conference with Judge Tassini, Plaintiffs' attorney withdrew the motion for admission of Cambridge records into evidence. Id.

Plaintiffs appealed the decision of the Administrative Law Judge to the district court pursuant to 20 U.S.C. ยง 1415(i)(2)(B). They now seek to offer expert testimony attesting to the appropriateness of the Cambridge School in order to obtain tuition ...


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