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West Windsor-Plainsboro v. M.F. and M.F. O/B/O A.F

March 4, 2011

WEST WINDSOR-PLAINSBORO REGIONAL
SCHOOL DISTRICT, BOARD OF EDUCATION, PLAINTIFF,
v.
M.F. AND M.F. O/B/O A.F., DEFENDANTS,



The opinion of the court was delivered by: WOLFSON,United States District Judge

NOT FOR PUBLICATION [15,16]

OPINION

Presently before the Court are Cross- Motions for Summary Judgment by Plaintiff West Windsor-Plainsboro Regional School District Board of Education ("Plaintiff" or "District") and Defendants M.F. ("Mrs. F") and M.F. ("Mr. F."),(collectively referred to as "Parents" or "Defendants") the parents of A.F., a child classified as eligible for special education services by the District. The instant motions arise out of the District's appeal of a decision by Administrative Law Judge ("ALJ") Patricia M. Kerins holding that the District did not provide A.F. with a free appropriate public education ("FAPE") in accordance with the Individuals with Disabilities Education Act ("IDEA") for the school years 2007-08 and 2008-09, and that a supplemental home-based Applied Behavioral Analysis ("ABA") program provided to A.F. at the Parents' own expense was appropriate. In her decision, ALJ Kerins also found that the Parents were entitled to reimbursement for the costs and expenses they incurred in providing the supplemental home program to A.F. for the 2007-08, 2008-09 and 2009-10 school years. The District now appeals that decision. This Court has jurisdiction pursuant to 20 U.S.C. §1415(i)(2)(A). For the reasons set forth below, the Court affirms the ALJ's decision.

I. BACKGROUND

A. Individuals With Disabilities Education Act, 20 U.S.C. 1400 et seq.

Through the IDEA , 20 U.S.C. §1400, et seq., the federal government provides funding to assist states in educating handicapped children living within their borders. Bd. of Educ. of the Hendrick Hudson Cent. Schl. Dist. v. Rowley, 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982)). Among the IDEA's purposes is "assuring that all handicapped children have available to them a free and appropriate public education which emphasizes special education and related services designed to meet their unique needs." L.P. v. Edison Bd. of Educ., 265 N.J. Super. 266, 272, 626 A.2d 473 (Law Div. 1993) (citing 20 U.S.C. §1400(c)). The IDEA realizes this aim by imposing a series of goals and procedures on participating states. See Bd. of Educ. of the Pawling Cent. Schl. Dist. v. Schutz, 290 F.3d 476, 481 (2d Cir. 2002); L.P., 265 N.J. Super. at 272-73 (describing requirements of 20 U.S.C. §§1412 and 1413).

Chief among a participating state's duties is that of creating an Individualized Education Plan ("IEP") for each disabled student within the state's school system. Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 756 (3d. Cir. 1995); see L.P., 265 N.J. Super. at 272-73 (citing 20 U.S.C. §1414(d)). In New Jersey, this duty can be assumed by a local educational agency ("LEA"), such as the District. See N.J.S.A. 18A: 46-5.1; L.P., 265 N.J. Super. at 273 (citing N.J.S.A. 18A: 46-8). The IEP is a written statement developed by a team comprised of the disabled student's parents, at least one of his or her teachers, and other local educational agency employees. 20 U.S.C. §1414(d)(1)(B). It includes, among other things, a statement of the student's present educational performance, measurable annual and shorter-term goals, and the services to be provided to the child. 20 U.S.C. §1414(d)(1)(A).

The IDEA grants parents who disagree with the LEA's proposed IEP the right to challenge the IEP in a "due process" hearing via the state's administrative law process. Schutz, 290 F.3d at 481 (internal citations omitted) (citing Honig v. Doe, 484 U.S. 305, 311-12 (1988));

L.P., 265 N.J. Super. at 273-74. In New Jersey, this process entails filing a complaint and request for a hearing with the New Jersey Department of Education. See generally L.P., 265 N.J. Super. at 273-74; N.J.A.C. 6A: 14-2.7(c). New Jersey has further designated its Office of Administrative Law ("OAL") to hear the special education complaints filed with the Department.

L.P., 265 N.J. Super. at 274. The dispute is adjudicated by an ALJ who has authority under the IDEA and New Jersey law to deem the LEA's proposed IEP inappropriate. See id.; N.J.A.C. 6A: 14-2.7(n)-(o). The ALJ's decision on "the appropriateness of the IEP is final and binding on the parties and must be implemented without undue delay." L.P., 265 N.J. Super. at 274; N.J.A.C. 6A: 14-2.7(g). Aggrieved parties may appeal the ALJ's decision to a state or federal district court. 20 U.S.C. §1415(i)(2).

Traditionally, the burden of proof to demonstrate compliance with IDEA had been upon the school district. The parents needed only place the appropriateness of the IEP at issue, and the burden would then shift to the school district to prove that the IEP was indeed appropriate. In 2005, however, the Supreme Court changed the burden analysis. See Schaffer v. Weast, 546 U.S. 49 (2005) ("burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief"). Following the Supreme Court's holding in Schaffer, the Third Circuit has held that "appellants bear the burden of proof when challenging the appropriateness of the relevant IEPs." L.E. v. Ramsey Bd. of Ed., 435 F.3d 384, 392 (3d Cir. 2006) (citing Schaffer, 546 U.S. 49, 126 S.Ct. at 537). Subsequent to the Schaffer and Ramsey decisions, New Jersey enacted legislation placing the burden of demonstrating the appropriateness of an IEP upon the school district. N.J.S.A. 18A:46-1.1. (2008); see also R.S. v. Somerville Bd. Of Educ., Civ. A. No. 10-4215, 2011 WL 32521, at *7 n.7 (D.N.J. Jan. 5, 2011).

In a situation where a child has been unilaterally placed by his or her parents in an educational setting contrary to the IEP, the parents may be entitled to reimbursement, only if the program proposed in the IEP was inappropriate "and if the parents demonstrate they have acted in good faith." Lascari, 560 A.2d at 1191; see also 20 U.S.C. §1412(a)(10)(C)(ii). The focus of the court's inquiry is to evaluate the appropriateness of "the IEP actually offered and not one that the school board could have provided if it had been so inclined." Lascari, 560 A.2d at 1189.

B. Factual Background*fn1

A.F. is a seventeen-year-old boy who has been diagnosed with autism. Vol. 2, R-2 at AR 3; Vol. 2, R-5, at AR 16-18; Vol. 2, R-9, at AR 40. At all times relevant to this action, A.F. has resided with his mother, M.F., sister and maternal grandmother in West Windsor, New Jersey. Vol. 2, R-2, at AR 3; Vol. 16, Tr. 133:10-134:19; Vol. 10, Tr. 75:6-17. A.F. came to the District at the age of nine, during the 2003-04 school year, whereupon A.F. was given a comprehensive evaluation by the District.*fn2 See generally Vol. 2, R-5 at AR 16; Vol. 2, R-6 at AR 19; Vol. 2, R-7 at AR 23; Vol. 2, R-8, at AR 32-35; Vol. 2, R-9 at AR 40; Vol. 10, Tr. 77-85. As a result, A.F. was, and has been at all relevant times, classified as eligible for, and entitled to, special education and related services under the category of "autistic" from the District.*fn3 The District initially proposed to place A.F. at the Reed Program at Mercer County Special Services School, however, A.F.'s parents disagreed with this placement and obtained counsel. Ultimately the parties agreed on a placement at the Children's Center of Monmouth County ("CCMC"). See Vol. 2, at AR 40; Vol. 10, Tr. 136:1-13.

provides additional therapy three to four times each week for one and a half to two hours. AR 4. The Eden evaluators reported that A.F. had made progress since 2003 and that A.F. thrived on "teaching approaches that are well grounded in Applied Behavior Analysis ("ABA"). AR 10. The Eden evaluators also noted that A.F. had significant difficulties with articulation/intelligibility and recommended a voice output communication system evaluation. Vol. 2, R-3 at AR 11. Subsequently, an Augmentative and Alternative Communication Evaluation was performed as part of the re-evaluation by Amy Doughtery, who recommended a trial with a voice output communication system known as a Dynavox Mini Mo. Vol. 2, R-4 at AR 12-15. In a trial at Ms. Doughtery's office, A.F. quickly learned to use the system and appeared to enjoy using it to communicate. Id. at AR 14. Thereafter, the District purchased a Dynavox system for A.F. who used it successfully at CCMC. Vol. 10, Tr. 89-92; Vol. 12, Tr. 48.

CCMC is a school approved by the New Jersey Department of Education as a private school for the disabled. The school offers educational programs and related services for students with autism and multiple disabilities between the ages of 3 and 21. See Vol. 4, P-3, at AR 422. A.F. began at CCMC in February 2004 and remained there for the entire period at issue in this case. Following his placement at CCMC, A.F.'s parents gave notice to the District that they had obtained private consultants at their own expense to provide A.F. with a supplemental home-based program based upon the principles of ABA. Vol. 16, Tr. 135:6-136:19; 143:8-144:4; 145:11-19.

On May 24, 2007, a meeting was held to develop an IEP for the 2007-08 school year. The meeting participants included Mrs. F, A.F.'s case manager Leslie Wyers ("Wyers"), recent evaluators Holmes and Quinlan and A.F.'s teacher Beth Graja; in addition, CCMC therapists participated via conference call. Mrs. F. was also accompanied by her attorney, Beth Callahan, and their consultant, Dr. Breslin. The District's attorney, David W. Carroll and a supervisor of special services, Kathy Mitchell, were also in attendance. Vol. 10, Tr. 92-93; Vol. 2, R-9 at AR "Parental Input." Vol. 2, R-10 at AR 47; Vol. 10, Tr. 108-109. This document claimed that A.F. had made "minimal educational progress" at CCMC and that A.F.'s academic gains resulted from the supplemental ABA-based home program and not the program provided at CCMC. Vol. 2, R-10 at AR 47. Additionally, the document set forth the parents' view that A.F.'s 2007-08 IEP had to incorporate intensive "home program services based upon the science and principals [sic] of Applied Behavior Analysis." Id.

Several placement options were discussed at the May 24, 2007 meeting, including: (1) continuing the current placement at CCMC; (2) placement in the ACES program, an in-district autistic program at the Middle School, recommended by Anne Holmes; and (3) other out-of-district placements. Vol. 10, Tr. 109-114. The District recommended the ACES program, an in-district special needs program, while A.F.'s parents sought placement in a full time ABA program.*fn4 Vol. 2, R-14 at AR 120; Vol. 16, Tr. 140:15-141:25. Ultimately, the parties compromised and agreed to continue the CCMC placement for the summer months*fn5 while investigating other options. Vol. 2, R-10, at AR 55; Vol. 10, Tr. 114-116, 120-121. Specifically, the District agreed to investigate and send records to four out-of-district full-day ABA programs suggested by A.F.'s parents and Dr. Breslin -- Somerset Hills, Princeton Child Development Institute ("PCDI"), Alpine and Garden Academy. See Vol. 2, R-10 at AR 55. A.F.'s parents also agreed to consider the in-district program. Id.; Vol. 10, Tr. 114, 116. The District's witness, Wyers, testified that following the meeting, she contacted each of the placements requested by A.F.'s parents, however, the programs either did not have openings or did not serve A.F.'s age group. Vol. 10, Tr. 127-128.

In August 2007, the District and A.F.'s parents met again, without counsel present. At this meeting, the District proposed its in-district LARKS program, as opposed to the ACES program, in order to minimize A.F.'s transitions.*fn6 See Vol. 10 Tr. 128-132. A.F.'s parents asked for time to consider the proposal. Ultimately, A.F.'s parents decided to continue with the CCMC placement pending an opportunity to send a specialist to observe the LARKS program. Vol. 2, R-14, at AR 144. Additionally, the District denied the Parents' request to fund the supplemental home program, stating:

The district believes that A. has achieved educational benefit from his day placement and that, though home services were offered as part of his program (both monthly visits as well as a Home Training Assessment) neither have been utilized by you. The Current proposed IEP includes extensive home consultative services to assist A.'s family in helping him generalize his learning experience at school within his home and community. [Vol. 5, P-16, at AR 789]

Accordingly, A.F. remained at CCMC during the 2007-08 school year under the August 2007 IEP, (R-14, Vol. 2, AR 116), while Defendants further continued to provide A.F. with a home program at their ...


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