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M.G. v. North Hunterdon-Voorhees Regional High Board of Education

United States District Court, D. New Jersey

October 2, 2018

M.G. and D.G. on behalf of M.G., Plaintiff,
v.
NORTH HUNTERDON-VOORHEES REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter is before this Court on two cross-motions for summary judgment (ECF No. 12 and 13). At oral argument both parties agreed that the matter may be resolved on these motions rather than conducting another hearing. The Court has subject matter jurisdiction pursuant to the Individuals with Disabilities Act (IDEA), 20 U.S.C.A. § 1400, et seq.

         I.

         As a preliminary matter, this is an appeal from a final order entered on October 13, 2017 by Administrative Law Judge Barry E. Moscowitz ("ALJ"). On November 22, 2017, Plaintiff filed a Complaint challenging the ALJ's decision because it "would result in unlawful discrimination against M.G.[1] and Plaintiffs on the basis of M.G.'s disabilities in violation of Section 504 and the IDEA. (Compl. "Compl." ECF No. 1, 30).

         I.

         Plaintiff M.G. is presently an eighteen-year-old student (date of birth March 5, 2000), but at the time of decision, M.G. was a minor. M.G. has been diagnosed with Autism Spectrum Disorder and other related disabilities. (Complaint, ECF No. 1, 4). For more than ten years, M.G. attended the Developmental Learning Center ("Learning Center") in Warren, New Jersey.

         Defendant, The North Hunterdon Voorhees Regional School District ("District"), is a regional educational agency of several municipalities and is subject to the regulations of the State of New Jersey, Department of Education, for the provision of educational services to children residing within the confines of its district, including children with special needs. The District is a recipient of federal funding for educational services it provides in accordance with IDEA and laws and regulations of New Jersey. See, e.g. N.J.A.C. 6A: 14-1.1 et seq.

         The District has identified M.G. as a child eligible for special education under IDEA as a student with autism. See 34 C.F.R. §300.7(c). When M.G. began attending the Learning Center in elementary school, a program for autistic students was not available within the District.

         The Learning Center is approximately twenty-five miles from M.G.'s home in Pittstown, New Jersey. During her first year of high school, M.G. continued to attend the Learning Center; however, for her second year (2016-2017), the District initiated a specialized program at its Voorhees High School in Glen Gardner, New Jersey for students with autism. (Def. Br. pg. 2). According to the District, the specialized program offered the same instruction, support and services as provided at the Learning Center, and Voorhees High School is substantially closer to M.G.'s home. (Def. Br. p. 2). According to Defendant, throughout the three years of dispute, M.G. has attended the Learning Center at the District's expense, pursuant to the "stay put" provision of the IDEA. 20 U.S.C. §14150. (Def. Br. p. 3).

         On February 26, 2016, the District proposed removing M.G. from the Learning Center to its specialized program at Voorhees High School as set forth within an Individualized Educational Program ("IEP"). (Compl. 12; Def. SOF 5). Plaintiff declined the IEP on March 8, 2016, and filed a due process petition ("Petition No. 1"). (Def. SOF ¶6).

         On April 28, 2017, the child study team at Voorhees High School offered M.G. a revised IEP which included placement in the autism program at Voorhees High School. (Id. ¶8). The revised IEP had many educational component including: (1) placement in a self-contained classroom at Voorhees High School, (2) a career development component of 495 minutes per week in the community, (3) group occupational therapy two times per week for thirty minutes, (4) group parent counseling and/or training services for 120 minutes weekly, (5) individual speech language therapy four times per week for thirty minutes, (6) group speech language therapy two times per week for thirty minutes each, (7) round trip transportation services between her home and school, (8) extended school year services, (9) a behavioral plan, (10) a transition plan from the Learning Center to the District, and (11) an ABA consultation and one-to-one aide. (Def. SOF 9). Plaintiff refused the IEP and filed a due process petition on June 14, 2017 (Petition 2). (Id. ¶14).

         Petition 1 and Petition 2 were pending before the New Jersey Office of Administrative Law. ALJ Moscowitz consolidated both petitions and conducted a three-day hearing[2]. Since M.G. remained a student at the Learning Center when Petition 1 was pending, that proposed IEP was no longer an issue at the time of the hearing. As such, the ALJ only reviewed the IEP subject to Petition 2.

         The hearing before ALJ Moscowitz was a battle of the experts. The District included the testimony of Jessica Allora, the school psychologist, Andrea Quinn, clinical psychologist and behavior specialist associated with Rutgers University, and Mary Pat Publicover, Director of Special Education for the District. Plaintiff presented the testimony of D.G., father of M.G., and Michelle Miller, clinical psychologist and assistant professor at the Child Study Center of New York University.

         On October 13, 2017, ALJ Moscowitz issued his Final Decision (ECF No. 13-5) in which he analyzed the testimony and written reports of the experts as well as M.G.'s father's testimony. Although M.G. has a long history of "self-injurious behaviors, eluding and other problematic behaviors, she has made meaningful progress at DLC over the years and the parents believe she should remain at DLC" (Final Decision, p. 2). Despite the Plaintiffs contention, ALJ Moscowitz found that "no genuine difference exists between the program ...


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