The opinion of the court was delivered by: Simandle, District Judge
This dispute arises out of Plaintiff L.J.'s allegations that Defendant Audubon Board of Education ("Audubon") failed to provide him a free and appropriate public education in violation of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400, et seq. Plaintiffs received a favorable final determination on their IDEA claim in an administrative proceeding held before Administrative Law Judge Joseph F. Martone ("ALJ Martone"), to whom the matter was assigned by the New Jersey Office of Special Education ("NJOSE"), and filed suit before this Court seeking an award of attorney's fees and an order from this Court enjoining Audubon to comply with the terms of ALJ Martone's order.
Presently before the Court is Defendant's motion for summary judgment as to its counterclaim against Plaintiffs [Docket Item 64], in which it seeks to remand this matter to the ALJ for a reevaluation of the adequacy of L.J.'s individualized education program ("IEP") for the 2005-2006 school year. For the reasons explained below, Defendant's motion will be denied.
A. Administrative Hearings and ALJ Martone's Ruling
The facts surrounding L.J.'s educational needs and the education he received in the Audubon School District were set forth in detail in the Court's November 5, 2007 Opinion, see L.J. ex rel. V.J. v. Audubon Bd. of Educ., No. 06-5350, 2007 WL 3252240 (D.N.J. Nov. 5, 2007), and are summarized herein only insofar as they are relevant to the narrow issue raised in Defendant's motion.
L.J., a student in the Audubon School System, has received special education and related services since he was diagnosed with autism. Id. at *1. On July 10, 2006, L.J.'s parents, V.J. and Z.J., filed a due process petition pursuant to 20 U.S.C. § 1415(f) with the NJOSE on behalf of their son, alleging that L.J.'s IEP for the 2005-2006 school year failed to address L.J.'s educational needs. (Am. Compl. ¶ 8.) The petition identified various shortcomings in L.J.'s IEP, including the IEP's failure to provide an effective behavior intervention plan to address the behaviors that were interfering with L.J.'s ability to learn; the absence of clear benchmarks, communication methodologies, and parental training strategies in the IEP; and Defendant's failure to employ qualified staff to provide L.J. with particular educational services. (Id.) Plaintiffs' due process petition was assigned to ALJ Martone. (Schwerin Aff. ¶ 3.)
ALJ Martone set a schedule for argument on Plaintiffs' due process petition, scheduling hearings for August 18 and 29, 2006. See Z.J. v. Audubon Bd. of Educ., No. 2007-11386, 2006 WL 3075735, at *1 (N.J. Adm. Oct. 23, 2006). At the second of these hearings, on August 29, 2006, counsel for Plaintiffs
raised an evidentiary objection to certain documents offered for identification by [Audubon] on the basis that [Audubon] had not provided any discovery pursuant to the requirements of N.J.A.C. 1:6A-10.1(a) and (b). Attorney for [Audubon] did not dispute this, representing that he had made an unsuccessful attempt to provide discovery to the [Plaintiffs] but he acknowledged that such discovery had not been provided.
Id. Pursuant to N.J.A.C. 1:6A-10.1(c), which provides in relevant part that "[u]pon application of a party, the judge shall exclude any evidence at [a] hearing that has not been disclosed to that party at least five business days before the hearing," Plaintiffs moved to exclude from the administrative proceedings the evidence that Audubon conceded it had failed to disclose.
The ALJ addressed Plaintiffs' motion in an "order excluding evidence pursuant to N.J.A.C 1:6A-10.1." Z.J. v. Audubon Bd. of Educ., No. 2007-11386, 2006 WL 3075736, at *1 (N.J. Adm. Oct. 23, 2006) (capitalization omitted). ALJ Martone first noted that there existed an array of reasons why the so-called "five-day rule" was employed infrequently in IDEA practice before the Office of Administrative Law:
Attorneys or pro se parties may not be aware of the rule, or may be reluctant to seek the exclusion of evidence because of the concern that the rule may be used against them in a future case. Other reasons may include the concern that a decision not based upon all available evidence may be subject to attack because it is not based on the merits. Also, if evidence is excluded, the adverse party may make a subsequent due process hearing request on the basis that there has been a change in circumstances requiring a new hearing.
The ALJ found, however, that the lone exception contained within N.J.A.C 1:6A-10.1(c) -- for cases in which "the evidence could not reasonably have been disclosed [five days before the hearing]" -- was inapplicable to the proceedings before him, noting that "[t]here [was] no information in the record . . . to support that determination in this matter." Z.J., 2006 WL 3075736, at *1. In light of Audubon's acknowledged failure ...