The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh
DENNIS M. CAVANAUGH, U.S.D.J.
This matter comes before the Court upon cross motions for summary judgment by E.G. and L.G on behalf of their daughter, E.G. ("L.")("Plaintiffs") and the Fair Lawn Board of Education ("Defendant"). Neither party requested oral argument, and pursuant to Fed. R. Civ. P. 78, no oral argument was heard. For the reasons stated herein, Defendant's motion will be granted.
The child whose education is at issue in this case, L. or E.G.*fn1 , was born on January 22, 2004. She has been diagnosed as having an autism spectrum disorder. She was referred to early intervention services when she was fifteen months old. On January 10, 2007 L. was classified as eligible for special education and related services under the category "preschool disabled." At a meeting held on that same day an individualized education program ("IEP") was prepared by Defendant's child study team and L.'s mother, and was signed by L.'s mother. The IEP called for L. to attend the Stepping Stones program, the Fair Lawn district's special education program for autistic pre-schoolers. Stepping Stones employs the Applied Behavioral Analysis ("ABA") method of working with autistic children. There are other methods available such as floor play that are used in other programs such as the Children's Center of Monmouth where L. was placed prior to this litigation.In addition to ABA, L.'sIEP called for speech, occupational and physical therapy services on a weekly basis, as well as the support of a 1:1 paraprofessional throughout the day. There was also a home program which was designed to compliment the school program. On May 15, 2007 a second IEP meeting was held to plan for the upcoming school year. L.'s revised IEP included more hours of speech therapy, and increased the hours of L.'s home program. She was offered extended school year services for the summer months. Her placement at Stepping Stones was continued. Plaintiffs signed and appear to have approved of the IEP.
As part of the Stepping Stones program, a behavioral intervention plan ("BIP") was instituted for L. that called for restraint of L. in a "basket hold" to deal with behaviors such as biting and scratching. On November 5, 2007 Plaintiffs withdrew their consent to this intervention and at that time, Plaintiffs raised the issue of changing L.'s placement to the Monmouth program. By letter dated November 15, 2007 Defendant denied this request. Plaintiffs thereafter requested an IEP meeting to further discuss their request. Plaintiffs brought several independent reports to the IEP meeting that they believed demonstrated that L. was ready for, and would benefit from, engagement with typical peers. Plaintiffs' expert, Dr. Sabatini, as well as Plaintiffs counsel, were also in attendance. Plaintiff had prepared a video to supplement the independent reports which members of the child study team declined to view. The IEP continued to recommend Stepping Stones, and Defendant maintained, as they still do, that it provided L. with a free and appropriate public education in the least restrictive environment. Plaintiffs declined to sign the December, 2007 IEP.
Subsequent to the December, 2007 meeting, Plaintiffs decided unilaterally to remove their child from Stepping Stones and place her in the program they believed was better suited to her needs, the Children's Center. She entered that program on March 4, 2008, and Plaintiffs filed for due process with the Office of Special Education on that same day. The case was referred to the Office of Administrative Law, and an Administrative Law Judge, Judge Paone, held a seventeen day evidentiary hearing to determine if Defendants had offered L. a free and appropriate public education in the least restrictive environment. In his Opinion dated October 5, 2009, Judge Paone concluded that they had. This appeal of Judge Paone's decision in the form of cross motions for summary judgment followed.
This case comes before the Court styled as a motion for summary judgment. In fact, the instant matter is actually an appeal of the ruling by an Administrative Law Judge ("ALJ") who heard the case in a due-process hearing, and ruled in favor of Defendant in October, 2009 . Indeed, "[w]here no new evidence has been presented to the Court, motions for summary judgment in an IDEA case are the procedural vehicle for asking the judge to decide the case based on the administrative record." K.H. o/b/o K.H. v. N. Hunterdon--Voorhees Reg'l High Sch. Hunterdon Co., No. 05--4925, 2006 U.S. Dist. LEXIS 55522, *11, 2006 WL 2331106 (D.N.J. Aug. 10, 2006) (citing M.A. v. Voorhees Twp. Bd. of Educ., 202 F.Supp.2d 345, 359 (D.N.J.2002)). The standard of review in an IDEA case "differs from that governing the typical review of summary judgment." Voorhees Twp., 202 F.Supp. at 359 (quoting Heather S. by Kathy S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir.1997), aff'd, 65 Fed. Appx. 404 (3d Cir.2003)).
Title 20 U.S.C. § 1415(i)(2) vests the parties in this action with the right to bring a civil action in this Court to review the determination of the ALJ rendered in a due-process hearing under the auspices of the Office of Administrative Law. Section 1415 requires this Court to (i) receive the records of the administrative proceeding; (ii) hear additional evidence at the request of a party; and (iii) base its decision on the preponderance of the evidence, granting such relief as the Court determines appropriate. See 20 U.S.C. § 1415(i)(2)(C)(i)-(iii); Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir.2004). Further, the Supreme Court has cautioned that "the provision that a reviewing court base its decision on the 'preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982) In reviewing the ALJ's decision this Court must apply a "modified version of de novo review," giving "due weight to the factual findings of the ALJ." L.E. v. Ramsey Bd. of Educ., 435 F.3d 384, 389 (3d Cir.2006) (citing Rowley, 458 U.S. at 206; Shore Reg'l, 381 F.3d at 199; S.H. v. State-Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 269-70 (3d Cir.2003)). The Third Circuit has instructed that "[f]actual findings from the administrative proceedings are to be considered prima facie correct." Shore Reg'l, 381 F.3d at 200. Further, the Third Circuit has explained that giving "special weight" to an ALJ's factual determinations means that this Court "must accept the state agency's credibility determinations 'unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.' " Id. (quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 527-29 (3d Cir.1995)) (emphasis in original). "In this context, the word 'justify' demands essentially the same standard of review given to a trial court's findings of fact by a federal appellate court." Id. (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985)). Accordingly, to overturn the ALJ's decision in this case, the Court must point to "non-testimonial evidence that undermined the testimony of these witnesses" and "provide an explanation for its decision to reject the ALJ's decision to credit" one witness over another. Id. (citing S.H., 336 F.3d at 271).
The Supreme Court has clarified that when reviewing the ALJ's decision, the district court must bear in mind that "[t]he burden of persuasion in an administrative hearing challenging an IEP is properly placed on the party seeking relief." Schaffer v. Weast, 546 U.S. 49, 50 (2005). See also L. E., 435 F.3d at 391 (holding that a party challenging the appropriateness of an IEP in New Jersey has the burden of proof).
"The issue of whether an IEP is appropriate is a question of fact." State--Operated Sch. Dist. of Newark, 336 F.3d at 271 (citing Carlisle Area Sch., 62 F.3d at 526). "A federal district court reviewing the administrative fact finder in the first instance is ... required to defer to the ALJ's factual findings unless it can point to contrary non-testimonial extrinsic evidence on the record." G.N. v. Bd. of Educ. of Livingston, Civ No. 05--3325, 2007 U.S. Dist. LEXIS 57081 at *15, 2007 WL 2265035 (D.N.J. Aug. 6, 2007) (quoting State Operated Sch. Dist. of Newark, 336 F.3d at 270). Therefore, the Court treats the ALJ's findings on the IEPs' appropriateness as prima facie correct, Bayonne Bd. of Educ., 602 F.3d at 564, and reviews them under a clearly erroneous standard, Carlisle Area Sch., 62 F.3d at 526 (citing Hassine v. Jeffes, 846 F.2d 169, 174 (3d Cir.1988)). However, the Court's review over questions of law and the ALJ's application of legal precepts is plenary. Carlisle Area Sch., 62 F.3d at 528, n. 3; D.B. v. Ocean Twp. Bd. of Educ., 985 F.Supp. 457, 500 ...