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D.S. v. Parsippany Troy Hills Board of Education

United States District Court, D. New Jersey

December 18, 2018

D.S. AND S.S. ON BEHALF OF S.S., Plaintiffs,
v.
PARSIPPANY TROY HILLS BOARD OF EDUCATION, Defendant.

          OPINION

          KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE

         This 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.

         For the reasons set forth below, I will GRANT the District's motion and DENY the Parents' motion.

         I. Background[1]

         A. Factual History

         The ALJ's findings of fact are as follows:

         SS was 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).

         On 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.).

         In 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.).

         On 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)).

         For two 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)).

         On 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)).

         On 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)).

         On 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. (Id.).

         Basile 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 secretary. (Id.).

         On 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. (Id.).

         On March 22, 2016, via e-mail, Ms. S asked if it would be possible to enroll her son March 21 or March 22.[2] (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. (Id.).

         On that 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.

         On 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.).

         On 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).

         On 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.).

         On 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).

         On 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)).

         On April 6, 2016, Ms. S e-mailed Chomut the list of schools that she was interested in. (ALJ Op. 11 (citing R-43)).

         On April 11, 2016, Milestones prepared a Behavior Intervention Plan and Skill Acquisition Program for SS (ALJ Op. 11 (citing R-50)).

         On 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)).

         On 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.).

         Ms. S 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)).

         On 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)).

         On the 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)).

         On 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.).

         On 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. (Id.).

         April 28, 2016 was SS's last day at Milestones. (ALJ Op. 14 (citing R-50). He had been there for just over one month.

         SS was 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.

         As 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, 2016.[3]

         On May 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 (citing R-7)).

         That same day, Susan Landesberg, M.S., conducted SS's psychological evaluation. (ALJ Op. 15 (citing R-8)).

         On May 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.).

         On May 9, 2016, Chomut performed a social assessment. The following day, Chomut documented that assessment in a report. (ALJ Op. 16 (citing R-9).

         On May 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)).

         On May 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)).

         The same day, May 19, 2016, Greco e-mailed Ms. S a copy of the educational evaluation. (ALJ Op. 17 (citing R-53)).

         Also on 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).

         On that 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).

         On May 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.).

         In 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).

         On May 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.

(Id.).

         In 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).[4]

         Second, 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.[5]

         Finally, 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.

         On May 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.

         On May 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).

         The 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.).

         On May 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)).

         During the period following that unilateral placement, the District did not convene any further meetings with the Parents to discuss the Parents' concerns.[6]

         On June 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 R-60).

         In 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 ...


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