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H.M., By Her Parents, B.M. and R.M., and B.M. and R.M., Individually v. Haddon Heights Board of Education

September 27, 2011

H.M., BY HER PARENTS, B.M. AND R.M., AND B.M. AND R.M., INDIVIDUALLY, PLAINTIFFS,
v.
HADDON HEIGHTS BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter involves an appeal of a decision of an administrative law judge (ALJ) who affirmed the Haddon Heights Board of Education's "declassification" of H.M. as a student with a "Specific Learning Disability" requiring special education. Before the Court is plaintiffs' motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons expressed below, plaintiffs' motion will be denied, and defendant's motion will be granted.

I. BACKGROUND

Plaintiffs B.M. and R.M. are the parents and legal guardians of H.M., who attends school in the Borough of Haddon Heights, Camden County, New Jersey. Defendant, Haddon Heights Board of Education ("Board" or "school district"), is a public body charged with the conduct, supervision and management of Haddon Heights public schools. H.M. began attending Kindergarten in September 2002 in the Haddon Heights public schools. Her parents obtained a private evaluation of H.M. highlighting her learning disability which they provided to H.M.'s Child Study Team (CST). In May 2005, the Board's CST classified H.M. with a disability eligible for special education services based upon H.M.'s learning disability in reading and mathematical calculation. The CST developed individual education plans (IEP) for H.M. in May 2005 through May 2008. In May 2008, at a reevaluation and IEP meeting, the CST determined that H.M. did not require special education to progress in the general education curriculum, and that she did not meet the criteria for special education services. As a result, over the objection of H.M.'s parents, the CST declassified H.M. After the declassification, H.M.'s parents enrolled H.M. in a home-based reading fluency program through Cooper Learning Center where H.M. received instruction in "word identification, word attack, passage comprehension, sight word efficiency and phonemic decoding efficiency."

II. PROCEDURAL HISTORY

On June 5, 2008, plaintiffs filed a complaint with the New Jersey Department of Education, Office of Special Education, for a due process hearing. Plaintiffs' complaint demanded an order requiring defendant to re-classify H.M. and provide appropriate special education and related services; compensatory education for the 2006-2007 and 2007-2008 school years; and tuition reimbursement for extended school year ("ESY") programming at Cooper Learning Center. The matter was transmitted to the Office of Administrative Law (OAL) on July 7, 2008 for a hearing. In his opinion dated May 28, 2009, the Administrative Law Judge (ALJ) affirmed defendant's determination that H.M. was no longer eligible for special education and related services.*fn1

As a result of the ALJ's decision, plaintiffs filed this case alleging that defendant violated their rights under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131, et seq., and New Jersey Special Education Law and Regulations.

Specifically, plaintiffs claim that the ALJ erred as a matter of law in concluding that H.M. was no longer eligible for special education in May 2008. Plaintiffs also contend that defendant did not meet its burden of proving that the 2006-2007 and 2007-2008 IEPs provided a free appropriate public education ("FAPE").

In addition, plaintiffs moved to have the record supplemented with progress reports and expert opinions regarding the additional instruction that plaintiffs independently obtained for H.M. The Court granted plaintiffs's motion to supplement the record, but did not at that time attribute any weight to the proffered evidence.

III. DISCUSSION

A. Jurisdiction

Plaintiffs brought this case pursuant to the IDEA, Rehabilitation Act, and the ADA, and therefore, this Court has jurisdiction over plaintiffs' federal claims under 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1367. This Court has jurisdiction to review the decision of the state educational agency under 20 U.S.C. § 1415(i)(2). Plaintiffs are entitled to bring this civil action because they have exhausted the requirement of administrative review under the IDEA. See 20 U.S.C. § 1415(e)(2).*fn2

B. IDEA

The IDEA obliges states in receipt of federal funding under the statute to guarantee a free and appropriate public education ("FAPE") to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A). The IDEA instructs states to develop an individual education plan, known as an "IEP," for every disabled child. 20 U.S.C. § 1412(a)(4). "An IEP consists of a specific statement of a student's present abilities, goals for improvement of the student's abilities, services designed to meet those goals, and a timetable for reaching the goals by way of the services." D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010) (citations omitted). A disabled child is entitled to "such services as are necessary to permit the child 'to benefit' from the instruction." Bd. of Educ. v. Rowley, 458 U.S. 176, 188-189 (1982). The IEP must provide a "'basic floor of opportunity,' but not necessarily 'the optimal level of services.'" Holmes v. Millcreek Twp. Sch. Dist., 205 F.3d 583, 589-90 (3d Cir. 2000)(quoting Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34 (3d Cir. 1995)). However, "although the state is not required to 'maximize the potential of handicapped children,' ... a satisfactory IEP must provide 'significant learning' and confer 'meaningful benefit.'" T.R. v. Kingwood Twp. Bd. Of Educ., 205 F.3d 572, 577 (3d Cir. 2000).

The IDEA also requires that a disabled child be educated in the "least restrictive environment." 20 U.S.C. § 1412(a)(5)(A). The least restrictive environment has been defined as "... one that, to the greatest extent possible, satisfactorily educates disabled children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled." Carlisle Area Sch., 62 F.3d at 535.

C. Standard of Review

The Third Circuit has recently outlined the standard of review of district courts when reviewing an appeal from the ALJ under the IDEA:

When considering an appeal from a state administrative decision under the IDEA, district courts apply a nontraditional standard of review, sometimes referred to as "modified de novo" review. Under this standard, a district court must give "due weight" and deference to the findings in the administrative proceedings. Factual findings from the administrative proceedings are to be considered prima facie correct, and if the reviewing court does not adhere to those findings, it is obliged to explain why. The "due weight" obligation prevents district courts from imposing their own view of preferable educational methods on the states.

D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010)

(citations omitted).

Even applying the modified de novo standard of review, the ALJ's credibility determination is given "special weight" because the ALJ has heard live testimony and determined that one witness is more credible than another witness. Id. (citing Shore Reg'l High Sch. Bd. of Educ., v. P.S., 381 F.3d 194, 199 (3d Cir. 2004)). "Specifically, this means that a District Court must accept the state agency's credibility determinations 'unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion.' " Id. (citations omitted). "... [T]he word "justify" requires that the applicable standard of review be essentially the same as that a federal appellate court applies when reviewing a trial court's findings of fact." Id. The school district bears the burden of proof and of production at the due process hearing before the ALJ. See N.J. Stat. Ann. § 18A:46-1.1.

D. Analysis

Plaintiffs seek summary judgment on their claims of violations of the IDEA, Rehabilitation Act, and the ADA for: (1) the Board's decision to declassify H.M.; and (2) the Board's implementation of H.M's IEP for 2006-2007, and 2007-2008. Plaintiffs also seek compensatory education and reimbursement for the ESY services provided by the Cooper Learning Center. Defendant filed a cross-motion for summary judgment arguing that: (1) plaintiffs' expert opinion should be stricken; (2) the decision that H.M. is not eligible for special education must be affirmed; (3) the IEPs met all of the requirements of the IDEA, the Rehabilitation Act and the ADA; (4) H.M. does not qualify for extended school year services and, therefore, is not entitled to reimbursement for the Cooper Learning Center; and (5) that plaintiffs are not entitled to a compensatory education.

1. Plaintiffs' Expert Opinion

As a threshold matter, we address defendant's argument that the opinion of plaintiffs' expert, Dr. Margaret Kay, must be stricken because: (1) she opined as to issues that predate the litigation and violate the statute of limitations; (2) the additional discovery provided by plaintiffs is outside the scope of their motion to supplement the record; and (3) the conclusions in the report constitute "net opinions." As explained below, although Dr. Kay's report will not be stricken in its entirety, certain portions of the report will be stricken as either irrelevant because they relate to claims that are beyond the statute of limitations, or because certain opinions expressed in the report fail to meet the requirements under Federal Rule of Evidence 702, and the standards outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 572 (1993).

a. Statute of Limitations

The IDEA has a two year statute of limitations, which states:

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

20 U.S.C. ยง 1415(f)(3)(C). The Third Circuit has held that the two year limitations period also applies to claims for education under the Rehabilitation Act. See P.P. ex rel. Michael P. v. West Chester ...


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