United States District Court, D. New Jersey
D.S. AND S.S. ON BEHALF OF S.S., Plaintiffs,
PARSIPPANY TROY HILLS BOARD OF EDUCATION, Defendant.
MCNULTY, UNITED STATES DISTRICT JUDGE
case is an appeal from a decision by Administrative Law Judge
("ALJ") Kelly J. Kirk, dated June 20, 2017. The
ALJ's opinion centers around a May 19, 2016
Individualized Education Plan ("IEP") prepared by
Defendant Troy Hills Board of Education (the
"District") for a minor child named SS who was in
the process of transferring into the district from out of
state. (ALJ Record, 118-133). SS's parents, plaintiffs
S.S. (Ms. S) and D.S. (Mr. S) claim that the District failed
to provide SS, their son, with a free and appropriate public
education ("FAPE") in the least restrictive
environment, as required by the Individuals with Disabilities
Education Act ("IDEA"). They unilaterally placed SS
in private school in New Jersey and then sought reimbursement
for his tuition charges. The District moves pursuant to
Federal Rule of Civil Procedure 56 for summary judgment
affirming the ALJ's decision. The Parents move for
summary judgment reversing the ALJ's decision.
the reasons set forth below, I will
GRANT the District's motion and
DENY the Parents' motion.
ALJ's findings of fact are as follows:
born in April 2010. (ALJ Op. 2). In 2012, SS was diagnosed
with autism spectrum disorder ("ASD").
(Id.). From August 2012 to February 2016, SS
attended Mitchell's Place, a private school in Alabama,
where the family then resided. (Id.). Mitchell's
Place developed an IEP for SS for the school year running
from August 2015 to August 2016. [Id.). Later, the
District would rely on the Mitchell's Place IEP as a
basis for development of their own IEP for SS (ALJ Op. 52).
November 6, 2015, via e-mail, Ms. S introduced herself to
Anthony Giordano, the Director of Special Services for the
District. She told Giordano that her family was considering
relocating to New Jersey in the spring. (ALJ Op. 3-4 (citing
R-27)). Ms. S informed Giordano that her family was in the
initial phase of looking for school districts that would best
meet the needs of her five-year-old son, who had an ASD
diagnosis. (Id.). She asked to set up a phone call
with Giordano. (Id.).
mid-November, 2015, Giordano and Ms. S spoke on the phone.
(Id.). Following up on the phone call, Ms. S sent
Giordano a brief narrative from Nicole Mishkin, MAE, BCBA, at
Mitchell's Place (the "Mitchell's Place
Narrative") to explain SS's current status. (ALJ Op.
4 (citing R-27). The narrative reflects that Mitchell's
Place had encountered challenges in attempting to implement
SS's recent programming. (Id.).
November 17, 2015, Ms. S e-mailed Giordano thanking him for
calling her back. She stated in the e-mail:
I can not thank you enough for calling me back this morning.
I feel so much confident about our upcoming move to your
area. I look forward to speaking with your ABA Therapist when
she connects with me. I have looked at your school calendar
and will likely plan a week long trip there prior to Spring
Break. I will keep you posted or connect with any questions
that pop up. Thanks for serving with passion!
(ALJ Op. 5 (citing R-28)).
days, January 5-6. 2016, 55 attended the BACA Atlas Clinic
(“BACA”) in Indiana. (ALJ op. 51. BACA did not
complete a VB-MAPP assessment of SS, but certain components
were tested and the Intraverbal Subtest was conducted. (ALJ
Op. 5 (citing P-1)).
February 18, 2016, Ms. S. and Giordano met at Giordano's
office. (ALJ Op. 6). On February 26, 2016, Ms. S e-mailed
Giordano the following:
I can not thank you enough for taking time to meet with me
last week to let me know what Parsippany has to offer. We are
still in the process of transitioning there from Alabama. I
hope our paths cross again REALLY soon. Your fire, energy and
passion are so evident and your students are so fortunate to
have you on their team.
(ALJ Op. 6 (citing R-31)).
March 2, 2016, Ms. S e-mailed Giordano the following:
I am thrilled that we are in the process of finalizing a
lease agreement for Parsippany. Please let me know where I
can start the process of enrolling? The lease should be
finalized by Friday, after the three day waiting period. I
would like to get the ball rolling before the weekend. We
will be in the area March 25-29th and moving there for good
Mid-April. I would like the March visit to encompass any
visits we need to make in advance of placement. We have a
narrative of his barriers from his current BCBA that was
written for an outside consultant BACA of Indianapolis. The
team at BACA included Dr. Sundberg who's [sic] brother
developed the VBMAPP. We could offer that as well.
(ALJ Op. 7 (citing R-32)). On March 4, 2016, Giordano replied
and requested Ms. S's address so that he could mail her
the preschool packet. (Id.). Giordano advised that
Ms. S could contact the school to make an appointment to have
SS meet with the Child Study Team ("CST") once the
family had a lease. (ALJ Op. 7). In her reply, Ms. S informed
Giordano that the family was still hammering out the lease,
but she provided the potential address. (Id.). Ms. S
also informed Giordano that SS would turn six in April. (ALJ
Op. 7(citing R-32)).
March 13, 2016, Ms. S e-mailed Giordano and Denise Basile,
Giordano's secretary, to say that she had not received
the packet. (ALJ Op. 7). Basile gave Ms. S the contact
information for the school that would serve the family's
anticipated New Jersey address. (ALJ Op. 7 (citing R-33). Ms.
S inquired about how to receive the packets so she could have
them filled out prior to registration within a few weeks.
replied that, because SS would be turning six in April, Ms. S
would need to register SS for first grade. (Id.).
She directed Ms. S that she could download the registration
forms online. (Id.). For further registration
information, Basile instructed SS to contact the school
March 15, 2016, via e-mail, Ms. S identified herself to Donna
Martinez at the District and thanked Martinez for taking her
call the day before. (ALJ Op. 7). To this e-mail, Ms. S
attached the following documents: (1) the Mitchell's
Place IEP for the 2015-2016 school year, (2) SS's July
2015 VB-MAPP results, (3) an activity-based teaching
checklist; and (4) SS's current tacting list.
(Id. (citing R-34)). In a second e-mail, Ms. S sent:
(1) the Mitchell's Place Narrative, (2) the BACA Report,
and (3) a redacted copy of the Parents' lease in
Parsippany. (ALJ Op. 8 (citing R-35)). Ms. S also told
Martinez that the family hoped to register and meet with the
District staff on March 28 or March 29. Id.).
Martinez thanked Ms. S in response to the first e-mail.
March 22, 2016, via e-mail, Ms. S asked if it would be
possible to enroll her son March 21 or March
22. (ALJ Op.
8 (citing R-36)). Inadvertently, Martinez replied to Ms. S
that she did not know what to do with SS's registration
and that she had given everyone all of the information.
same day, March 22, 2006, SS began attending Milestones
Behavior Group, Inc. ("Milestones") in Alabama.
(ALJ Op. 9 (citing R-50). That enrollment lasted
approximately one month.
March 24, 2016, Martinez informed Ms. S that she had
forwarded Ms. S's e-mail to everyone that needed access,
but had yet to hear back from CST. (ALJ Op. 9). Martinez
advised Ms. S to contact CST. (Id.).
March 31, 2016, Ms. S e-mailed Vicky Chomut, MSW, LCSW, a
school social worker for the District. (ALJ Op. 3 (citing
R-17)). In that email, Ms. S thanked Chomut for meeting with
her the day before "for an impromptu conversation."
(ALJ Op. 9). Ms. S informed Chomut that the family had looked
up the schools on the list that Chomut had written for them,
two of them being "Epic" and "Garden."
(Id.). Ms. S stated that she looked forward to
meeting with Chomut in the upcoming weeks to visit other
schools and do an evaluation, if necessary. (ALJ Op. 10).
April 3, 2016, Ms. S sent Chomut an e-mail, attaching a 2015
occupational therapy evaluation and an interdisciplinary
evaluation and treatment planning report from Mitchell's
Place. (ALJ Op. 10 (citing R-39)). Ms. S also offered to send
a neurological report. (Id.). Ms. S stated that, in
the upcoming weeks, she would like to visit to look at
schools and complete enrollment. (Id.).
April 4, 2016, Chomut requested the neurological report and
informed Ms. S that she had forwarded the information to her
colleagues on the CST. (ALJ Op. 10). Mom sent the report and
requested the names of the other CST members. (Id.).
On April 4, 2016, Ms. S emailed Chomut an occupational
therapy discharge summary from Mitchell's Place. (ALJ Op.
10 (citing R-41)). Ms. S advised that she did not have a
summary for speech because they had pulled SS from that
program to focus on ABA during the transition. (ALJ Op. 10).
April 5, 2016, Ms. S e-mailed Chomut (1) the BACA Report, (2)
the Mitchell's Place Narrative, and (3) a CST
administrator access letter. (ALJ Op. 10-11 (citing R-42)).
Ms. S informed Chomut that they were available on April 21 or
April 22 for morning evaluations and school visits. (ALJ Op.
11 (citing R-42)).
April 6, 2016, Ms. S e-mailed Chomut the list of schools that
she was interested in. (ALJ Op. 11 (citing R-43)).
April 11, 2016, Milestones prepared a Behavior Intervention
Plan and Skill Acquisition Program for SS (ALJ Op. 11 (citing
April 14, 2016, Ms. S asked Chomut for an update on school
visits and SS's evaluations. (ALJ Op. 11). On April 19,
2016, Ms. S informed Chomut that she had scheduled an
additional meeting with Alpine Learning Group
("Alpine"). Ms. S requested that Chomut would
confirm that Alpine had SS's records and send the agenda
for April 21 and April 22. (ALJ Op. 11-12 (citing R-4; R-45;
P-18)). Chomut replied with an update on the scheduled tours
and informed Ms. S that she would be happy to send SS's
records to Alpine. (ALJ Op. 12). Chomut also stated that
"the Team is looking forward to evaluation SS for
necessary eligibility documentation on Thursday 4/21 at 10
am." (Id. (citing R-4, P-18). On April 20,
2016, Chomut e-mailed Ms. S the final appointments at
schools. (ALJ Op. 12 (citing R-45)).
April 21, 2016, Ms. S e-mailed Giordano informing him that
she had "hit a wall with the school enrollment
process." (ALJ Op. 13). Ms. S informed Giordano that the
family had arrived at the testing site for evaluations that
morning, but had been told that SS could not be evaluated.
Ms. S asked Mr. Giordano what the family needed to do and
advised that, to her knowledge, they had completed all
necessary paperwork. (Id.). In reply, Giordano
informed Ms. S that the evaluations could not be done in one
day and that CST needed to meet and review all documentation.
(Id.). Mr. Giordano instructed Ms. S to wait to hear
from him or a supervisor. (Id.).
forwarded Giordano's response to Chomut and stated:
Please see below. I thought it was an one hour evaluation.
Not sure what is going on with the process. I have been asked
to wait to hear from Mr. Giordano. I appreciate you going the
extra mile and will wait to hear from you all. I will honor
the appointments tomorrow. Please send contact names, if you
can. Obviously this turn of events is incredibly
disappointing, but we will adjust.
(ALJ Op. 13 (citing R-46)).
April 21, 2016, an Initial Planning Meeting was held, with
Mr. S and Johanna Greco ("Greco"), MA, LDT-C, a
member of the CST (ALJ Op. 3 (citing R-20)), in attendance.
(ALJ Op. 13 (citing R-5)). The District then proposed to
conduct an educational evaluation and psychological
evaluation. (ALJ Op. 13 (citing R-6)).
same day, Mr. S signed an authorization for the CST to
exchange verbal and written confidential information with
Milestones. (ALJ Op. 13-14 (citing R-7)).
April 22, 2016, Ms. S e-mailed Ms. Chomut:
We have decided to head home. I think it's best if
someone is with me on the visit and that we are on pace to be
enrolled so that we can manage our expectations. Please let
me know if I need to cancel them.
(ALJ Op. 14 (citing R-47)). Chomut replied and suggested that
if Ms. S was still in New Jersey, the two should speak.
(Id.). Ms. S asked Chomut to let her know what other
paperwork was needed because Ms. S would be leaving for
Alabama the following Friday. (Id.).
April 27, 2016, Ms. S e-mailed Giordano, asking if there was
an update on SS's registration and If he needed any more
information. (ALJ Op. 14 (citing R-48)). The family, Ms. S
further informed Giordano, would be in New Jersey permanently
starting the following weekend. (Id.). Giordano
replied that someone from CST would reach out to her. (ALJ
Op. 14 (citing R-48). On April 28, 2016, Ms. S advised
Giordano that the family was now scheduled for meetings.
28, 2016 was SS's last day at Milestones. (ALJ Op. 14
(citing R-50). He had been there for just over one month.
officially registered in the District on April 30, 2016. (ALJ
Op. 14). In their statement of undisputed facts, the Parents
assert that "the parents registered SS as a student with
the [District] on March 30, 2016 and gave the
[D]istrict all of the relevant documentation required for
registration via email correspondence." (DE 19 ¶ 10
(citing R-34; R-35; R-39). In support, the Parents cite Ms.
S's testimony that she and her husband officially
registered their son at the school on March 30, 2016. (PR
¶ 46 (citing T4 205). In reviewing this issue, I must
defer to the ALJ's credibility determinations unless
contradicted by non-testimonial evidence.
non-testimonial evidence of the date of registration, the
Parents cite to several e-mails from Ms. S. to
representatives of the District in which Ms. S provides the
District with SS's documentation for enrollment. (PSF
¶ 10 (citing "R-34" (DE 8-1 at 189);
"R-35" (DE 8-1 at 219); "R-39" (DE 8-1 at
257)). Nothing within those e-mails or their attachments
overcomes the ALJ's finding that SS was registered on
April 30, 2016. (see ALJ Op. 15). In fact, the cited email of
April 3, 2016 from Ms. S. to Chomut (R-39, DE 8-1 at 257),
appears to contradict the Parents' position. In that
e-mail, Ms. S states "I would like to visit on a
Thursday and/or Friday in the upcoming weeks to look at
schools and complete enrollment." (Id.)
(emphasis added). Thus, at least as of April 3, 2016, the
Parents were still in the process of completing enrollment of
their son with the District. There is not sufficient
extrinsic evidence to overcome the ALJ's finding that the
date of SS's registration was April 30,
5, 2016, Ms. S signed authorization forms for the CST to
exchange verbal and written confidential information about SS
with several New Jersey schools. (ALJ Op. 14-15). Ms. S also
signed an authorization form for "out of district school
per CST suggestions or parent(s) requests." (ALJ Op. 15
same day, Susan Landesberg, M.S., conducted SS's
psychological evaluation. (ALJ Op. 15 (citing R-8)).
8, 2016, Ms. S e-mailed Greco to thank her for visiting her
home. (ALJ Op. 16 (citing R-49). Ms. S also discussed
out-of-district schools and the factors she was using in
deciding on one. (Id.).
9, 2016, Chomut performed a social assessment. The following
day, Chomut documented that assessment in a report. (ALJ Op.
16 (citing R-9).
12, 2016, Greco performed an educational evaluation. (ALJ Op.
17). The next day, Greco documented that evaluation in a
report. (ALJ Op. 17 (citing R-10)).
19, 2016, Landesberg asked Ms. S for a neurological report
with diagnosis. SS's initial diagnosis was not from a
psychiatrist, Ms. S informed Landesberg, but from a
psychologist. (ALJ Op. 17 (citing R-52)).
same day, May 19, 2016, Greco e-mailed Ms. S a copy of the
educational evaluation. (ALJ Op. 17 (citing R-53)).
May 19, 2016, an initial eligibility determination with IEP
meeting was held. (ALJ Op. 17 (citing R-12)). The draft IEP
reflects SS's proposed placement for May 23, 2016, to
June 23, 2016, and for September 6, 2016, to June 23, 2017,
as Special Class Autism with an individual personal aide
daily for 390 minutes. (ALJ Op. 17).
same day, Ms. S e-mailed Greco thanking her for an
informative meeting. (ALJ Op. 18). Ms. S also requested an
electronic copy of the evaluation, if that had not already
been done, and the Draft IEP. (ALJ Op. 18 (citing R-54).
20, 2016, Greco e-mailed Ms. S the Draft IEP and advised that
they would continue to make changes to the document until
placement was finalized. (Id.).
their statement of undisputed facts, the Parents assert that
the Draft IEP (R-12) had no goals and objectives and was
missing the social assessment (R-9). (DE 19 ¶ 18). I
agree with the Parents that the Draft IEP lacked
goals and objectives and the social assessment. (R-12). Both,
however, are incorporated in the revised IEP.
(R-13). The Parents note that the social worker, Chomut, was
not present at the IEP meeting, and the record bears them
out. (Id.). Chomut was present, however, at the May
24, 2016 meeting discussed infra. (ALJ Op. 25).
24, 2016, the family took a tour of the District's
program at Rockaway Meadow school and then met with the staff
for a meeting. (ALJ Op. 18). That same day, Ms. S e-mailed
Greco, Chomut, and Landesberg, and asked them to send the
revised IEP that was discussed in that meeting (here called
the "Final IEP"). (ALJ Op. 18 (citing R-55)). On
May 25, 2016, Martinez e-mailed District employees and copied
Ms. S, among others. (ALJ Op. 18-19). That e-mail stated that
the Parents observed the District's autistic program the
day before and that a draft IEP had been developed.
(Id.). In addition, the e-mail discussed what
programs SS would be attending, his registration location,
and transportation arrangements. (Id.). In addition,
the e-mail stated the following:
The ABLLS-R (The Adaptive Language and Learning Scale-
Revised) will be administered when he begins the program and
teachers and therapists can then provide summaries and goals
developed from the assessment. Susan Landesberg (Case Manager
from Troy Hills) will be at Rockaway Meadow on June 1st along
with Vicky Reinhard (Social Worker-Rockaway Meadow). Please
feel free to contact if there are any concerns.
their statement of undisputed facts, the Parents assert that,
at the Rockaway Meadow meeting, there was no BCBA present to
explain the program or why it was appropriate for SS (PSF
¶ 20 (4T 213:1-214:25). The ALJ, however, accepted
Chomut's testimony that she, Landesberg, Greco, Nancy
Heisler, the Rockaway Middle School psychologist in charge of
the autism program, and an unnamed behaviorist attended that
meeting with Ms. S. (ALJ Op. 25).
the Parents assert that, without discussion, the District
informed Ms. S that SS would be enrolled in Occupational
Therapy and Speech Therapy. The Parents do not provide a
citation to the record to support this assertion. The Parents
state that they informed the District that they had
discontinued those services in Alabama because they were not
effective, but that the District prescribed those services in
New Jersey without performing an evaluation. Again, there is
no citation to the record.
the Parents assert that the District personnel were unable to
articulate the qualifications of SS's one-to-one
paraprofessional. (DE 19 ¶ 21 (citing 4T 215: 4-216:
9)). The ALJ considered Ms. S's testimony regarding the
District's paraprofessionals. (ALJ Op. 45). However, the
ALJ determined that Ms. S's criticisms were based on her
perception that programs such as SEARCH hire personnel with
more advanced credentials. The ALJ found "no
evidence," however, "that there are particular
educational requirements not met by the paraprofessionals at
Rockaway Meadow School." (ALJ Op. 54). The Parents have
not presented adequate extrinsic evidence to overcome that
finding of the ALJ.
25, 2016, Landesberg e-mailed Ms. S a copy of the Final IEP.
(ALJ Op. 19). In that e-mail, Landesberg explained that the
dates of the Final IEP would run from June 1, 2016 and expire
May 19, 2017 (one year from the initial meeting).
(Id.). Landesberg also advised that teachers and
behaviorists would be able to meet with the Parents or
provide programs directly into the Final IEP. (Id.
(citing R-57; R-8)). The meaning of this is somewhat unclear.
26, 2016, Landesberg e-mailed Ms. S that, because she had not
heard back from Ms. S, Landesberg assumed that she would meet
SS at school when the bus arrived that Wednesday. (ALJ Op.
19). Landesberg requested that if there were any changes, Ms.
S should contact her by cell phone. (ALJ Op. 19).
Final IEP reflects SS's proposed placement for (1) June
1, 2016 to June 23, 2016 and (2) September 7, 2016 to May 19,
2017. (ALJ Op. 19 (citing R-13)). SS's proposed placement
was Special Class Autism with a personal aide daily for 390
minutes, and special transportation via bus with an attendant
from July 1, 2016 to May 19, 2017. (Id.). The final
IEP also includes occupational therapy once a week for 20
minutes and speech-language therapy two times a week for
twenty minutes. (Id.). For the period between July
1, 2016 and July 29, 2016 (the "extended school
year"), SS was placed as Special Class Autism with an
individual personal aide daily for 240 minutes, occupational
therapy once a week for fifteen minutes, and speech-language
therapy once a week for twenty minutes. (Id.).
26, 2016, the Parents signed an Agreement for service for
SEARCH Consulting, LLC ("SEARCH") in Mountainside,
New Jersey. (ALJ Op. 19). On that same date, the Parents'
attorney (1) requested that the District's attorney
provide her with SS's data as well correspondence
regarding SS; (2) notified the District that the Parents
intended to unilaterally place SS at SEARCH; and (3)
requested referrals to several out-of-district schools. (ALJ
Op. 19-20 (citing R-59)).
the period following that unilateral placement, the District
did not convene any further meetings with the Parents to
discuss the Parents' concerns.
1, 2016, Chomut e-mailed Ms. S a draft copy of SS's
social assessment and asked Ms. S if she thought any
corrections or additions should be noted. (ALJ Op. 20 (citing
their statement of undisputed facts, the Parents state that
die social assessment was not complete because, until that
point, it did not contain all history and parental input.
(PSF ¶ 18, 24 (citing R-9, R-60)). The social assessment
states that "[l]ater [SS] was privately evaluated at the
Autism Research Institute and the Alpine Institute by Autism
Specialists who recommended that [SS] would best be serviced
academically through strict top tier intensive ABA programs
that exclusively used discrete trial, e.g. Epic, Garden
Academy, Alpine." (R-9, 6). The Parents do not cite to
code or case law to support the implication that the social
assessment was not final until after the Final IEP was