United States District Court, D. New Jersey
E. THOMPSON, U.S.D.J.
matter comes before the Court on cross-motions for summary
judgment filed by Plaintiff M.C.L ("Plaintiff) (ECF Nos.
7, 8) and Defendant North Hunterdon-Voorhees Regional High
School Board of Education ("Defendant") (ECF No.
9). Both Motions are opposed. (ECF Nos. 14, 15, 16, 17.) The
Court has decided the motions based on the parties'
written submissions and without oral argument pursuant to
Local Civil Rule 78.1(b). For the reasons stated herein, the
Court: (1) affirms the ALJ's finding that Plaintiffs
notice was untimely and (2) remands this matter for further
consideration of whether Plaintiff is entitled to any
reimbursement for her unilateral private placement.
M.C.L, mother of M.I., brings suit against the North
Hunterdon-Voorhees Regional High School Board of Education
alleging violations of the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1400
et seq., and corollary provisions of New Jersey law.
Plaintiff claims that Defendant failed to provide her
daughter, M.I., with a free and appropriate public education
("FAPE") in the least restrictive environment, as
required by the IDEA, and that she is entitled to tuition
reimbursement for a unilateral private school placement.
Individuals with Disabilities Education Act
IDEA requires states receiving federal education funding to
ensure that students with disabilities receive a FAPE. 20
U.S.C. §§ 1400(d)(1)(A), 1412(a)(1); see also
Munir v. Pottsville Area Sch. Dist., 723 F.3d 423,
425-26 (3d Cir. 2013). A state satisfies the FAPE requirement
by providing "personalized instruction with sufficient
support services to permit the child to benefit educationally
from that instruction." Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203
(1982). At its core, the IDEA requires school districts to
evaluate students who may be considered disabled under the
statute and develop and administer an Individualized
Education Program ("IEP") for any eligible student.
See 20 U.S.C. § 1414; see also S.H. v.
State-Operated Sch. Dist. of Newark, 336 F.3d 260, 264
(3d Cir. 2003). The student's IEP must address their
"level of functioning, set forth measurable annual
achievement goals, describe the services to be provided, and
establish objective criteria for evaluating the child's
progress." C.H. v. Cape Henlopen Sch. Dist.,
606 F.3d 59, 65 (3d Cir. 2010) (citing 20 U.S.C. §
Jersey, the IEP is developed by a school district's Child
Study Team-composed of a school psychologist, a learning
disabilities teacher-consultant, and a school social worker-
along with the student's parent(s) or guardian(s), a
teacher familiar with the student, and other specified school
personnel. N.J.A.C. 6A:14-2.3(k)(2). A parent who disagrees
with a school district's proposed IEP may challenge the
IEP in a due process hearing, which is adjudicated by an
Administrative Law Judge ("ALT"). N.J.A.C. 6A:
14-2.7; Lascari v. Bd. of Educ, 560 A.2d 1180,
1183-84 (N.J. 1989). The ALJ's final decision may then be
appealed by any aggrieved party through a civil action in
state or federal court. 20 U.S.C. § 1415(i)(2).
Case History & Procedural Background
a high-school aged student from Clinton Township, New Jersey.
(Pl's Statement of Undisputed Material Facts
("SMF") ¶ 1, ECF No. 7-2; Def.'s SMF
¶ 1, ECF No. 9-1.) As a child, she attended public
school in the Clinton School District, which serves students
in kindergarten through eighth grade. (Pl's SMF¶ 2.)
Following eighth grade, Clinton Township public school
students attend high school in the district overseen by the
North Hunterdon-Voorhees Regional High School Board of
Education ("the NHV District"). (Pl's SMF¶
2; Def.'s Resp. to Pl's SMF ¶ 2, ECF No. 15-1;
Def.'s SMF ¶ 3; see also M.L o/b/o M.I v. North
Hunterdon/Voorhees Regional High Bd. of Educ. ("ALJ
Op."), OAL No. 15963-16, Final Decision, at 2 ¶ 1
(Mar. 8, 2017), ECF No. 9-13.)
third grade, M.L was diagnosed with dyslexia and Attention
Deficit Hyperactivity Disorder ("ADHD"), determined
by the Clinton School District to be eligible for special
education services under the IDEA, and designated to receive
services under the "specific learning disability"
classification, see N.J.A.C. 6A:14-3.5(c)(12).
(Pl's SMF¶ 1; Def.'s Resp. to Pl's SMF¶
1; Def.'s SMF¶ 2.) Pursuant to a settlement
agreement with M.I's parents, the Clinton School District
agreed to an out-of-district placement for M.L at the Craig
School, a private day school, beginning in 2011. (Pl's
SMF ¶ 3; see also ALJ Op. at 2 ¶ 2.) M.L
continued attending the Craig School and receiving special
education services there through eighth grade, ending in the
spring of 2016. (Pl's SMF ¶¶ 3-4; Def.'s
SMF ¶ 2.) M.L was provided with an Orton-Gillingham
based program, assistive technology, and in-class supports.
(Pl's SMF ¶ 3.)
M.I's eighth grade year, Plaintiff and Defendant began a
transition plan for M.L to attend high school in the NHV
District beginning in the 2016-2017 school year. (Pl's
SMF ¶¶ 4-7; Def.'s Resp. to Pl's SMF
¶¶ 6-7.) On January 19, 2016, a meeting was held
with Plaintiff, members of the Clinton School District child
study team, and a representative of the NHV District's
child study team for M.I's annual IEP review and to begin
planning for her transition to high school. (Pl's SMF
¶ 7; Def.'s SMF ¶ 6; ALJ Op. at 2 ¶ 3.)
Plaintiff completed the NHV District's high school
enrollment form and signed a permission form for a NHV
District representative to observe M.I. during a class at the
Craig School. (Pl's SMF ¶ 7.)
meeting, the Clinton School District proposed an IEP dated
January 19, 2016, which continued to classify M.I. under
"specific learning disability." (See Katz
Cert., Ex. B, January 2016 IEP, ECF No. 7-4; Moore Cert., Ex.
D, January 2016 IEP, ECF No. 9-7.) Plaintiff signed the January
19, 2016 IEP, giving her consent to implement it immediately.
(Katz Cert., Ex. B; Moore Cert., Ex. D.) The NHV District
proposed that beginning in fall 2016 M.I. would receive
special education and related services in public high school
consisting of English taught by a special education teacher
in a resource center setting; supplemental instruction in
reading, writing, and math; in-class support for her other
academic classes; and other modifications to her
instructional program. (Def.'s SMF ¶ 7; ALJ Op. at 3
¶ 4.) Plaintiff agreed to visit North Hunterdon High
School to explore the transition. (Pl's SMF ¶ 8.)
March 2016, Plaintiff and M.I. met with members of the NHV
District child study team, toured North Hunterdon High
School, and received information about the proposed program
for M.I. (Pl's SMF ¶ 10; Publicover Cert., Ex. A.)
It is disputed whether, as part of that visit, Plaintiff
advised Defendant that the proposed IEP was unacceptable
because it failed to provide M.L with FAPE. (Compare
Pl's SMF¶ 10, with Def.'s Resp. to
Pl's SMF¶ 10.) M.I. was evaluated for Read 180
during the visit. (Publicover Cert. ¶ 6; M.C.I. Cert.
¶ 5.) She was found to be ineligible for Read 180, and
the results of the evaluation were forwarded to the Clinton
School District in early April 2016. (Publicover Cert. ¶
6; Publicover Cert., Ex. B.) However, the results were not
sent to M.I's parents until August 2016. (M.C.I. Cert.
¶ 5; see Publicover Cert., Ex. B.) In May 2016,
the NHV District also sent Plaintiff an updated proposed
course schedule for M.I. (Publicover Cert. ¶ 6.)
2016, Plaintiff submitted a signed enrollment contract for
M.I. to attend ninth grade at the Pennington School
("Pennington"), a private, out-of-district
school. (Pl's SMF ¶ 11; Def.'s SMF
¶ 9; see also ALJ Op. at 3 ¶ 10.) The
record is not clear as to when Plaintiff made the first
deposit to Pennington to secure a spot for M.I.
(Compare Pl's SMF ¶ 11 (10% deposit made in
May 2016) and Def.'s SMF ¶ 10 (10% deposit
made in May 2016), with Moore Cert., Ex. B, ECF No.
9-5 (contending Plaintiff made first payment July 30, 2016)