United States District Court, D. New Jersey
K.E. and B.E., individually and o/b/o T.E.,, Plaintiffs,
NORTHERN HIGHLANDS REGIONAL BOARD OF EDUCATION, Defendant.
Kevin McNulty, United States District Judge.
K.E. and B.E. ("the parents"), individually and on
behalf of their son T.E., sue the Northern Highlands Regional
Board of Education (the "school" or the
"district"), alleging various federal and state
education-law violations. T.E., who was particularly
susceptible for medical or psychological reasons, was bullied
in middle school to the point of physical injury. Fearing
that some of the same abusive middle school students would
follow T.E. to public high school, his parents placed him at
Dwight-Englewood, an independent college preparatory school,
where he remains.
reimbursement of private school tuition, the parents
initiated an administrative proceeding against the elementary
school district, Upper Saddle River, and against the regional
high school district, Northern Highlands. An administrative
law judge ("ALJ") held an evidentiary hearing. The
Upper Saddle River (middle school) district settled with the
parents for $25, 000. As to the Northern Highlands (high
school) district, the ALJ denied the parents' due process
petition, finding, inter alia, that the parents had
failed to comply with the necessary notice procedures and had
not acted reasonably before unilaterally placing T.E. in a
private school. Now in federal court, the parents seek relief
for an alleged denial of rights under the Individuals with
Disabilities Education Improvement Act of 2004
("IDEA"), 20 U.S.C. § 1400 et seq,,
and Section 504 of the Rehabilitation Act of 1973
("504"), 29 U.S.C. § 794, New Jersey's
Special Education Law, N.J.S.A. § 18A:46-1, and the
implementing federal and state regulations. (DE 5).
the Court are Plaintiffs' Motion for Summary Judgment and
Partial Summary Judgment (DE 24), and Defendant's Motion
for Summary Judgment (DE 26). For the reasons that follow,
Plaintiffs' motion is DENIED, and
Defendant's motion is GRANTED.
was born on May 11, 2002 and attended Cavallini Middle School
in Upper Saddle River through eighth grade. (DE 24-1 ¶
1; DE 26-1 ¶ 1). At Cavallini, T.E. had an
individualized education plan ("IEP") for speech
therapy because he spoke with a lisp. (DE 24-1 ¶ 2; DE
26-1 ¶ 2). T.E. had never been evaluated to determine
his eligibility for special education (DE 24-1 ¶ 3; DE
26-1 ¶ 3), but there was never any apparent need,
because between kindergarten and seventh grade, T.E. was an
excellent student who played sports and had many friends. (DE
24-1 ¶ 4; DE 26-1 ¶ 4).
October 2015, when T.E. was in eighth grade, he underwent
surgery to remove a brain tumor. (DE 24-1 ¶ 5; DE 26-1
¶ 5). After he returned to school in January 2016, T.E.
was noticeably different. (DE 24-1 ¶ 6; DE 26-1 ¶
6). His personality and emotional state had changed: he was
withdrawn, he cried a lot, could not return to his routines,
did not eat, did not sleep, could not do work in school or
homework at home, and often said strange things. (DE 24-1
¶7;DE26-1 ¶ 7).
a month after T.E.'s return to middle school, a classmate
stole his iPad and math notebook. (DE 24-1 ¶ 8; DE 26-1
¶ 8). Several weeks later, another student stole, and
later returned, his book bag. (DE 24-1 ¶ 9; DE 26-1
¶ 9). At one point, T.E. became upset because of a
"friends issue" and decided to eat lunch in the
guidance counselor's office. (DE 24-1 ¶ 10; DE 26-1
¶ 10). During this time, T.E. often complained to his
mother and the guidance counselor at Cavallini that his
classmates did not like him, that they would make fun of him
because of his height, and that he felt isolated. (DE 24-1
¶ 11; DE 26-1 ¶ 11). On March 16, Dr. Lisa A.
Kotler, diagnosed T.E. with "Adjustment Disorder with
Mixed Anxiety and Depressed Mood." (DE 24-1 ¶ 12;
DE26-1 ¶ 12).
12, 2016, in anticipation of T.E.'s enrollment in high
school that September, his mother, B.E., met with Kelly
Peterfriend, the 504 coordinator for Northern Highlands
Regional High School. (DE 24-1 ¶ 13; DE 26-1 ¶ 13).
During the meeting, Northern Highlands presented a draft 504
Plan to B.E.(DE 24-1 ¶ 14; DE 26-1 ¶ 14). At
the time, the 504 team was aware that T.E. had been diagnosed
with Adjustment Disorder with Mixed Anxiety and Depressed
Mood, and the 504 Plan specifically cited Dr. Kotler's
March 16 letter. (DE 24-1 ¶ 15; DE 26-1
and June 2016, the severity of the bullying increased. (DE
24-1 ¶ 17; DE 26-1 ¶ 17). On May 16, a student
picked up T.E. during recess and dropped him, causing T.E. to
hit his head on the pavement, which triggered a grand mal
seizure. (Id.), A nurse eventually arrived, and T.E.
continued to seize for approximately one to two minutes after
anti-seizure medication was administered. (DE 24-1 ¶ 18
85 19; DE 26-1 ¶ 18 & 19).
8, one of T.E.'s classmates held a pencil upright on his
chair as he sat down. (DE 24-1 ¶ 21; DE 26-1 ¶ 21).
The pencil punctured T.E.'s pants and underwear and
pierced his anus, causing rectal bleeding. (DE 24-1 ¶
22; DE 26-1 ¶ 22). When B.E. arrived at Cavallini, she
found T.E. in the bathroom of the nurse's office,
distraught. (DE 24-1 ¶ 23; DE 26-1 ¶ 23). She had
to insert tissues into his anus to control the bleeding. (DE
24-1 ¶ 24; DE 26-1 ¶24).
Immediate Aftermath and the 504 Plan
the pencil incident, Cavallini provided T.E. with one-on-one
supervision. (DE 24-1 ¶ 24; DE 26-1 ¶ 24). On June
9, 2016 James McCusker, the principal of Cavallini, spoke
with B.E. and emailed her that evening, noting "I
continue to be moved by [T.E.'s] recent experiences and
appreciate your justified perspective." (DE 24-1 ¶
25; DE 26-1 ¶ 25). McCusker memorialized the discussion
that had occurred with B.E. earlier that day to "ensure
that we share a common understanding of how the school plans
to manage [T.E.'s] safety and well-being." (DE 24-1
¶ 26; DE 26-1 ¶ 26). He noted that that "[i]t
was agreed that, for the remainder to the school year, there
will be 1:1 adult supervision for [T.E.] in all settings
(i.e., classroom, recess, hallway transition). This
level of supervision will be in place throughout the regular
school day."(DE 24-1 ¶ 27; DE 26-1 ¶ 27).
McCusker then advised B.E. that that they should "get
together for a meeting as soon as possible." (DE 24-1
¶ 28; DE 26-1 ¶28).
for T.E.'s safety, his parents met with Cavallini staff
on June 10, to develop an "action plan" to keep him
safe and to discuss exploring private-and public-school
options for high school. (DE 24-1 ¶ 29; DE 26-1 ¶
29). B.E. testified that the purpose of the meeting was to
discuss how Cavallini would keep T.E. safe and what options
were available to them because she and her husband were
"gravely concerned" for T.E.'s safety in
connection with his transition to Northern Highlands with the
same children who had bullied him. (DE24-1 ¶30; DE 26-1
meeting, McCusker volunteered to contact Joseph Occhino, the
principal at Northern Highlands, to set up a meeting
concerning T.E.'s transition to high school. (DE 24-1
¶ 31; DE 26-1 ¶ 31). T.E.'s parents wanted to
meet with Occhino because they believed that "speaking
to Mr. Occhino will be important as having top down support
is essential." (DE 24-1 ¶ 32; DE 26-1 ¶ 32).
B.E. later testified that McCusker suggested that Occhino be
involved in light of the uniqueness of T.E.'s situation.
(Id.). McCusker also agreed to consult with the
child study team ("CST") at Cavallini to
investigate potential private school placements for T.E. (DE
24-1 ¶ 33; DE 26-1 ¶ 33).
12, B.E. provided Northern Highlands with comments to the May
12 504 Plan. (DE 24-1 ¶ 36; DE 26-1 ¶ 36).
T.E.'s parents both signed the 504 Plan, (DE 26-2 ¶
5 & 6; DE 29-1 ¶ 5 & 6), but when B.E. provided
her comments, she specifically did not check (i.e., signal
assent to) the line that stated "I agree with the
Section 504 Plan as written." (DE 26-2 ¶ 6; DE 29-1
¶ 6). B.E. handwrote "adding in my comments"
and initialed the end of the line. (Id.). B.E. later
testified that she did not agree to implementation of the
draft 504 Plan and that she had planned on meeting with
Northern Highlands later in June to discuss her concerns for
T.E.'s safety following, among other things, the pencil
incident. (DE 24-1 ¶ 39; DE 26-1 ¶ 39).
T.E.'s parents, with McCusker's assistance, worked
"parallel paths" to place T.E. in September either
at Northern Highlands or in a private school. (DE 24-1 ¶
44; DE 26-1 ¶ 44). McCusker investigated
Dwight-Englewood School as an option. (DE 24-1 ¶ 45; DE
26-1 ¶ 45). Dwight-Englewood School is a private college
preparatory school in Englewood. It has not been approved by
the State of New Jersey pursuant to N.J.A.C. 6A: 14-7.2 as a
private school for students with disabilities. (DE 29-1
16, 2016, McCusker informed the parents that Dwight-Englewood
had told him that there was "no pathway for September
2016 admittance" for T.E. (Id.). Later that
day, McCusker offered to contact Montclair Kimberley Academy
"about immediate options." (DE 24-1 ¶ 46; DE
26-1 ¶ 46). After he contacted Montclair Kimberley
Academy, McCusker told the parents that he had "reached
a dead end with them as well," because by June, private
schools had completed their admission process for September.
The June 28 Meeting
28, 2016 T.E.'s parents again met with McCusker and
representatives of Northern Highlands to discuss T.E.'s
future at Northern Highlands. (DE 24-1 ¶ 47; DE 26-1
¶ 47). Peterfriend and a guidance counselor attended the
meeting on behalf of Northern Highlands. (Id.).
During the meeting, the parties discussed the bullying to
which T.E. had been subjected at Cavallini. (DE 24-1 ¶
48; DE 26-1 ¶ 48). B.E. later testified that she and her
husband were "extremely scared and worried" about
T.E.'s safety and that they were looking for Northern
Highlands to tell them how they planned to ensure T.E.'s
safety. (DE 24-1 ¶ 48; DE 26-1 ¶ 48).
the Northern Highlands principal, did not attend the June 28
meeting. (DE 24-1 ¶ 49; DE 26-1 ¶ 49). T.E.'s
parents were told that he wasn't available. (Id.,
). During the meeting, the Northern Highlands 504 team
told the parents that they could not provide one-to-one adult
supervision for T.E. (DE 24-1 ¶ 50; DE 26-1 ¶ 50).
The district indicated that it could not afford a full-time
bodyguard, but the team instead recommended that T.E. leave
each class five minutes early to avoid problems in the
hallway and to allow him to enter the lunchroom before the
other students arrived. (Id.). It was mentioned that
the lunchroom and hallways could be "very chaotic."
(Id.). T.E.'s parents found this plan
unacceptable, because the bullying incidents that occurred at
Cavallini occurred in class and at recess-not in a lunchroom
or hallway. (DE 24-1 ¶ 52; DE 26-1 ¶ 52). B.E.
testified that a plan that had T.E. leave each class five
minutes early would have further stigmatized him and was
tantamount to punishing T.E.-the victim of the bullying.
(Id.). Tracy LaRocca, the school's learning
disability teacher consultants, explained that if crowded
hallways were a concern, the school would be able to
accommodate it. (DE 26-2 ¶ 18; DE 29-1 ¶ 18).
the meeting, T.E.'s parents also requested that Northern
Highlands evaluate T.E. for eligibility for special
education. (DE 24-1 ¶ 57; DE 26-1 ¶ 57). They
wanted T.E. evaluated as soon as possible, because at this
point, they had not yet identified a school at which they
believed he would be safe. (Id.).
the meeting, Northern Highlands proposed and sent a revised
504 Plan to T.E.'s parents that suggested that T.E. leave
class five minutes early as an additional "action
strategy." (DE 24-1 ¶ 53; DE 26-1 ¶ 53). The
revised plan did not provide the one-to-one protection that
Cavallini had provided to T.E. after the pencil incident.
(Id.). T.E.'s parents did not agree with this
504 Plan either, because it would have required him to miss
approximately 10% of his instructional time by having him
leave each class five minutes early. (DE 24-1 ¶ 55; DE
26-1 ¶ 55). This plan was not signed.
testified that they had always intended to send T.E. to
public school with his friends. (DE 24-1 ¶ 58; DE 26-1
¶ 58). Because their preference was for T.E. to attend
Northern Highlands, B.E. arranged for T.E. to meet the school
nurse on July 7. (DE 24-1 ¶ 59; DE 26-1 ¶ 59). At
the same time, T.E.'s parents pursued potential
private-school placement options for T.E. (DE 24-1 ¶ 60;
DE 26-1 ¶ 60). Indeed, after McCusker informed them on
June 16 that there was no pathway to admission at
Dwight-Englewood, his father K.E. called Dwight-Englewood
directly, which agreed to meet with the them. (Id.).
July 7, T.E.'s parents were pursuing placements at
Northern Highlands or Dwight-Englewood, which were in their
eyes the only options available to T.E. that September. (DE
24-1 ¶ 63; DE 26-1 ¶ 63). On July 8, B.E. emailed
to Peterfriend to tell her that the Dwight-Englewood
psychologist wanted to speak to her and-to help
Dwight-Englewood determine the level of support that T.E.
would need-to review the 504 Plan that Northern Highlands had
proposed. (DE 24-1 ¶ 61; DE 26-1 ¶ 61).
T.E.'s Parents Enroll Him at Dwight-Englewood
15, 2016 Dwight-Englewood sent T.E.'s parents an
enrollment contract, providing them twenty-four hours to
sign. (DE 24-1 ¶ 65; DE 26-1 ¶ 65). The enrollment
contract obligated the parents to pay a full year's
tuition of $42, 000. (DE 24-1 ¶ 88; DE 26-1 ¶ 88).
K.E. and B.E. both signed. (DE 24-1 ¶ 65; DE 26-1 ¶
65). From their perspective, they signed the Dwight-Englewood
contract because they had yet to secure a safe option for
T.E. for the following September. ((DE 24-1 ¶ 66; DE
26-1 ¶ 66). They both testified that notwithstanding the
contract, they still wanted to send T.E. to Northern
Highlands. (DE 24-1 ¶ 67; DE 26-1 ¶ 67).
point thereafter, Dwight-Englewood assured K.E. and B.E. that
T.E. would be safe if he attended school there. (DE 24-1
¶ 64; DE 26-1 ¶ 64). It assured them that an adult
would supervise and monitor T.E., that if a student assaulted
T.E. he or she would be expelled, and that all
Dwight-Englewood personnel, including teachers, the athletic
department, and the coaching staff, would be aware of a
seizure protocol for T.E. and would carry his emergency
The July 20 Meeting
20, 2016 B.E. attended an evaluation-planning meeting with
the CST from Northern Highlands. (DE 24-1 ¶ 68; DE 26-1
¶ 68). B.E. advised Northern Highlands that she and her
husband were investigating private-school placements for T.E.
(DE 24-1 ¶ 61; DE 26-1 ¶ 61). B.E. testified that
few options were available to them, because the application
process for September matriculation had been completed at
private schools. (Id.).
as T.E.'s case manager, also attended. (DE 24-1 ¶
61; DE 26-1 ¶ 61). She testified that during the
evaluation-planning meeting, B.E. and the CST discussed the
need to perform further testing on T.E. to understand his
cognitive functioning after his brain surgery, and it was
later determined that T.E. should receive a
neuropsychological evaluation. (DE 24-1 ¶ 70 8s 71; DE 26-1
¶ 70 8s 71). The evaluation-meeting attendees agreed
that Dr. Jane Healey would perform the evaluation. (DE 24-1
¶ 72; DE 26-1 ¶ 72).
also raised concerns regarding several individual students,
and LaRocca explained to her that T.E. would have minimal
contact with those students due to the schedule for T.E. that
the school intended to fashion. (DE 26-2 ¶ 19; DE 29-1
¶ 19). B.E. told the others that she had looked into
other potential schools for T.E. and that Dwight-Englewood
was one of those schools. (DE 26-2 ¶ 21; DE 29-1 ¶
21. However, she did not reveal that the family had already
contracted for T.E. to attend Dwight-Englewood in September.
also did not explain during the meeting why she thought the
504 Plan she had signed on June 12 was inadequate for T.E.
(DE 26-2 ¶ 15; DE 29-1 ¶ 15). In fact, there was no
discussion about the executed 504 Plan at the July 20
meeting. (Id.). B.E. simply informed the CST that
T.E. had been bullied when he attended Cavallini and that
Cavallini had assigned a one-on-one aide to T.E. to ensure
his safety. (DE 24-1 ¶ 73; DE 26-1 ¶ 73). Apart
from the neuropsychological evaluation, Northern Highlands
did not request any other assessments of T.E. (DE 24-1 ¶
72; DE 26-1 ¶ 72). After the meeting, B.E. and LaRocca
scheduled the evaluation. (Id.).
Awaiting the Neuropsychological Evaluation Results
the evaluation-planning meeting, LaRocca informed Tom Buono,
Northern Highlands's Director of Special Services, that
B.E. was concerned for T.E.'s safety because he had been
bullied while he attended Cavallini. (DE 24-1 ¶ 76; DE
26-1 ¶ 76). LaRocca, however, did not specifically
inform Buono about the pencil incident or tell Buono that
Cavallini had assigned a one-on-one aide to T.E. to ensure
his safety. (DE 24-1 ¶ 77; DE 26-1 ¶ 77).
21, 2016 the day after the evaluation-planning meeting, K.E.
called Buono to discuss his concerns for T.E.'s safety.
(DE 24-1 ¶ 78; DE 26-1 ¶ 78). He did not reach
Buono that day (id.), but when they finally spoke,
K.E. told Buono of the bullying incidents that had occurred
at Cavallini and that McCusker had assigned T.E. a full-time
bodyguard for his safety, (DE 24-1 ¶ 79; DE 26-1 ¶
79). Buono asked why T.E. had not been classified if he had
the type of safety needs then being requested.
(Id.). On August 8, K.E. emailed McCusker to find
out why T.E. had not been classified at Cavallini based on
his safety needs. (DE 24-1 ¶ 80; DE 26-1 ¶ 80).
explained that T.E. had received a "speech only"
IEP, that a 504 Plan had been issued because of T.E.'s
anxiety and depression diagnoses, and that Cavallini had
decided to assign dedicated supervision to T.E. for physical
protection because of "some unpredictable and
extraordinary incidents" that had occurred:
While it is difficult to know the full context of the
questions, I can offer the following:
[T.E.] has been a "classified student," designated
as "speech only." This means, at some point, he was
diagnosed with a disability qualifying him exclusively for
services related to speech. While at Cavallini, he did not go
through a full child study team evaluation. Therefore, he was
not deemed as "not eligible", rather he
was not fully evaluated for determination. If I understand
correctly, I believe he was being fully evaluated by the
NHRHS Child Study Team this summer.
The second question is in regards to classification at
Cavallini due to safety needs. [T.E.] gained a 504 Plan
(not considered SE classification) to address the
diagnosis of anxiety and depression. This was the extent of
the official diagnosis and response.
As we know, the conclusion of last year featured some
unpredictable and extraordinary incidents. As a result with
an abbreviated amount of time remaining in the school year
(approximately two weeks), we decided, without
classification, to assign dedicate[d] supervision to [T.E.].
Throughout his time, he was medically cleared for
participation in PE and recess; and we did not have a medical
diagnosis indicating a condition that would official qualify
him for a classification based on the need for physical
(DE 24-1 ¶ 81; DE 26-1 ¶ 81). On August 11, K.E.
forwarded McCusker's clarifying response to Buono. (DE
24-1 ¶ 82; DE 26-1 ¶ 82). K.E. summarized the
bullying incidents to which T.E. had been subjected, and he
alerted Buono that "(t]he stress caused by the trauma in
school contributed to [T.E.'s] postsurgical diagnosis of
post-traumatic stress disorder." (Id.). K.E.
again informed Buono that Cavallini had assigned T.E. a
full-time bodyguard "to simply keep him safe." (DE
24-1 ¶ 83; DE 26-1 ¶ 83). K.E. also commented on
the 504 Plan that Northern Highlands had issued in June:
In putting together [T.E.'s] 504 for next year, we have
had many meetings with NHRHS to establish a plan to keep him
safe. The NHRHS staff indicated that they could not afford a
full time body guard. As a result, the team recommended that
he leave classes 5 minutes early to avoid problems in the
hallway as well as be able to go into the lunchroom before
everyone arrives because it was mentioned that lunch and
hallways can be "very chaotic." What this results
in is [T.E.] intentionally missing more than 10% of the
academic year. While the neuropsychological testing will be
helpful to determine his learning needs, the results do not
address his safety requirements. This is clearly a very
unusual situation . . . [T.E.] deserves an academically
challenging AND safe environment.
(DE 24-1 ¶ 84; DE 26-1 ¶ 84) (alterations in
point (August 11), K.E. and B.E. still considered Northern
Highlands a potential placement option for T.E. (DE 24-1
¶ 85 & 86; DE 26-1 ¶ 85 & 86). B.E. wanted
to send T.E. to Northern Highlands in September because his
friends would be attending, and she and K.E. believed that
changing schools would have been difficult for T.E. (DE 24-1
¶ 87; DE 26-1 ¶ 87). K.E. similarly testified that
in August he still wanted to send T.E. to Northern Highlands
because "[t]hat's where his friends were" and
"[w]e knew it would be traumatic if he had to go
anywhere else." (DE 24-1 ¶ 88; DE 26-1 ¶ 88).
K.E. further testified that T.E. "had already been
through enough. We didn't need to now transition him to a
new school. That would have just been another trauma."
(Id.). Even though the enrollment contract with
Dwight-Englewood obligated them to pay a full year's
tuition, K.E. and B.E. both testified that as of August that
they were willing to lose $42, 000 and still enroll T.E. at
Northern Highlands. (DE 24-1 ¶ 88; DE 26-1 ¶ 88).
T.E. Begins at Dwight-Englewood
September 2016, T.E. began to attend school at
Dwight-Englewood. (DE 24-1 ¶ 90; DE 26-1 ¶ 90).
There, he did not have an IEP. (DE 26-2 ¶ 76; DE 29-1
¶ 76). On September 6, K.E. informed Buono that
"[a]s we have indicated, in light of the experiences
[T.E.] had at Cavallini, coupled with the 504 Plan set in
place by NHRHS, for safety reasons [T.E.] is continuing his
education at Dwight-Englewood" and that "[w]e would
like to meet as soon as practical to discuss the necessary
reimbursements from the district." (DE 24-1 ¶ 91;
DE 26-1 ¶ 91). K.E. concluded that "this was never
our intention but we made this decision with [T.E.'s]
safety as our highest priority." (Id.}. Buono
told K.E. that "once you send us the results of the
neuropsych evaluation we will schedule a meeting with
you." (DE 24-1 ¶ 92; DE 26-1 ¶ 92). However,
K.E. had previously alerted Buono that the results of the
evaluation would not have addressed T.E.'s safety needs.
(Id.). Between July 1 and September 6 (the first day
of school), T.E.'s parents had never requested of
Northern Highlands any services or modification of T.E.'s
504 Plan. (DE 26-2 ¶ 24; DE 29-1 ¶ 24).
in September, Buono informed the CST that T.E. had been
enrolled at Dwight-Englewood and would not be attending
Northern Highlands. (DE 24-1 ¶ 93; DE 26-1 ¶ 93).
LaRocca testified that from the perspective of the CST,
T.E.'s enrollment at Dwight-Englewood did not alter the
team's intent with respect to T.E. (Id.).
October 2016, Dr. Healey issued a written report of the
neuropsychological evaluation of T.E. (DE 24-1
¶ 94; DE 26-1 ¶ 94). Dr. Healey reported that in
January and February 2016, T.E. "was noted to have
difficulty returning to school, which occurred 6 weeks after
surgery, he was irritable and sad, very fearful of any
medical procedures, and he talked about •killing himself
but he had not actively tried to harm himself nor did he have
any plan to do so." (DE 24-1 ¶ 95; DE 26-1 ¶
95). Based on her findings, Dr. Healey reported that T.E. had
been "rated by his mother to fall above the
90thpercentile [f]or internalizing and
externalizing problems, with ratings above the
97th percentile noted for anxiety, depression,
withdrawal, social problems, and aggression."
[Id.). Dr. Healey further reported that T.E.
exhibited "catastrophic reactions" when presented
with challenges, without exhibiting any prior signs of
frustration. (DE 24-1 ¶ 96; DE 26-1 ¶ 96). She
diagnosed him with "Traumatic Brain Injury (s/p Tumor
Resection), seizure activity, possible effects of
antiepileptic medications"; "ADHD-Inattentive
Type"; "Learning Disorder NOS (Initiation,
retrieval, visual organization, Executive functioning)";
"Anxiety Disorder, NOS"; "Depressive Disorder,
NOS"; and "Coordination Disorder." (DE 24-1
¶97; DE 26-1 ¶97).
October 11, 2016, T.E.'s parents forwarded to Northern
Highlands Dr. Healey's written report. (DE 24-1 ¶
98; DE 26-1 ¶ 98). The next day. LaRocca invited
T.E.'s parents to an eligibility meeting. (DE 26-2 ¶
26; DE 29-1 ¶ 26).
The October 13 Meeting
October 13, 2016 T.E.'s parents met with seven
representatives of Northern Highlands, who reported that T.E.
was eligible for special education and related services. (DE
24-1 ¶ 99; DE 26-1 ¶ 99). T.E.'s parents made
it clear that T.E. would continue to attend Dwight-Englewood
and that they did not wish to remove him from this
educational setting. (DE 26-2 ¶ 28; DE 29-1 ¶ 28).
Thus T.E.'s parents declined placement at Northern
Highlands even before they received the school's draft
IEP for review. (DE 26-2 ¶ 29; DE 29-1 ¶ 29).
at this meeting that Northern Highlands for the first time
presented the parents with a sixteen-page draft IEP. (DE 24-1
¶ 99; DE 26-1 ¶ 99). LaRocca later testified that
the parents had never had an opportunity to review the draft
IEP prior to the meeting and that they wanted to review the
IEP with their attorney. (DE 24-1 ¶ 100; DE 26-1 ¶
100). The draft IEP contained the following note: "[The
parents] would like [T.E.] to continue at Dwight-Englewood.
The CST feels [T.E.] can be educated at Northern
Highlands." LaRocca testified that, prior to the
meeting, Northern Highlands knew that the parents wanted T.E.
to attend Dwight-Englewood only because they feared for his
safety. (DE 24-1 ¶ 101; DE 26-1 ¶ 101)- The meeting
lasted less than an hour and afterward LaRocca had no further
interactions with T.E.'s parents. (DE 24-1 ¶ 102; DE
26-1 ¶ 102).
The Final IEP
November 1, 2016 Northern Highlands sent the parents the
final IEP. (DE 24-1 ¶ 103; DE 26-1 ¶ 103). The IEP
did not specifically detail the bullying incidents that had
occurred at Cavallini, but stated generally that T.E.'s
parents were "concerned with how [T.E.] had been treated
at school and some of the modifications that needed to be put
into place to ensure [T.E.'s] well being." (DE 24-1
¶ 104; DE 26-1 ¶ 104). The IEP proposed that T.E.
could leave class Five minutes early. (Id.). Prior
to issuing the November 1 IEP, no member of the Northern
Highlands CST had personally evaluated T.E., and Dr. Healey
was the only person who had evaluated T.E. after the July 20
meeting between B.E. and Northern Highlands. (DE 24-1 ¶
105 & 106; DE 26-1 ¶ 105 & 106). The final IEP
did not explicitly refer to Dr. Healey's
neuropsychological report or the tests she had run. (DE 24-1
¶ 107; DE 26-1 ¶ 107).
October 11 initial eligibility letter Northern Highlands had
explained that the reason for its rejection of the
parents' request that T.E. be educated at
Dwight-Englewood was because "Least Restrictive
Environment (LRE) is the requirement in federal law that
students with disabilities receive their education, to the
maximum extent appropriate, with nondisabled peers and that
special education are not removed from regular classes
unless, even with supplemental aides and services, education
in regular classes cannot be achieved
satisfactorily. (DE 24-1 ¶ 117; DE 26-1 ¶
November 9, T.E.'s parents rejected the IEP, because they
thought it was not appropriate for T.E. (DE 24-1 ¶ 122;
DE 26-1 ¶ 122). Instead, they requested that "the
district agree to continue [T.E.'s] placement at
Dwight-Englewood School." (Id.). This
letter-written and sent four months after T.E.'s parents
contracted with Dwight-Englewood and two months after T.E.
began attending classes there-was the first occasion on which
T.E.'s parents requested in writing reimbursement for the
costs of the Dwight-Englewood placement. (DE 26-2 ¶ 31;
DE 29-1 ¶ 31). Northern Highlands rejected the
parents'request. (DE 24-1 ¶ 122; DE 26-1 ¶
Highlands and Upper Saddle River had not provided T.E.'s
parents with a PRISE booklet before T.E.'s enrollment at
Dwight-Englewood on September 6. (DE 24-1 ¶ 123; DE
26-1 ¶ 123). Northern Highlands did not provide them a
PRISE booklet until the IEP meeting on October 13.
5, 2017, T.E.'s parents filed a petition for due process
with the Office of Special Education Programs. (DE 23-1). On
September 21, 2017, Northern Highlands filed a motion to
dismiss the petition. (DE 23-2). On November 29, 2017, ALJ
Thomas Betancourt denied the motion but ruled that
"petitioners did not provide proper notice pursuant to
N.J.A.C. 6A: 14-2.10(c) or 20 U.S.C. §
1412(a)(10)(C)(iii)." (DE 23-6 at 5).
December 11, Northern Highlands moved to bifurcate the due
process hearing. (DE 23-7 at 2 ¶ 3). On January 12,
2018, the ALJ granted the motion and:
ORDERED that the hearing . . . shall be limited to the
a. What, if any, effect shall Petitioners' failure to
provide adequate notice pursuant to N.J.A.C. 6A: 14-2.10(c)
and 20 U.S.C.A. § 1412(a)(10)(C)(iii) have on their
request for reimbursement of tuition and ...