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K.E. v. Northern Highlands Regional High School Board of Education

United States District Court, D. New Jersey

October 30, 2019

K.E. and B.E., individually and o/b/o T.E.,, Plaintiffs,


          Hon. Kevin McNulty, United States District Judge.

         Plaintiffs 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.

         Seeking 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).

         Before 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.

         I. BACKGROUND[1]

         A. Factual History

         1. T.E.'s Adolescence

         T.E. 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).

         In 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).

         Within 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).

         On May 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.[2](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 ¶ 15).

         2. Bullying Incidents

         In May 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).

         On June 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).

         3. Immediate Aftermath and the 504 Plan

         Following 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."[3](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).

         Fearful 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 ¶30).

         At the 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).

         On June 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.[4] (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).

         Thereafter, 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 ¶ 42).[5]

         On June 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. (Id.).

         4. The June 28 Meeting

         On June 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).

         Occhino, 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.[6] (DE 26-2 ¶ 18; DE 29-1 ¶ 18).

         During 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.).

         After 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.

         B.E. 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.).

         As of 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).

         5. T.E.'s Parents Enroll Him at Dwight-Englewood

         On July 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).

         At some 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 spray. (Id.)

         6. The July 20 Meeting

         On July 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.).

         LaRocca, as T.E.'s case manager, also attended.[7] (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.[8] (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).

         B.E. 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.[9] (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. (Id.).

         B.E. 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.).

         7. Awaiting the Neuropsychological Evaluation Results

         After 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).

         On July 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).

         McCusker 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 protection.

(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 original).

         At this 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).

         8. T.E. Begins at Dwight-Englewood

         In 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.[10] (DE 26-2 ¶ 24; DE 29-1 ¶ 24).

         Later 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.).

         In October 2016, Dr. Healey issued a written report of the neuropsychological evaluation of T.E.[11] (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).

         On 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).

         9. The October 13 Meeting

         On 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).

         It was 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).

         10. The Final IEP

         On 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).[12]

         In its 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.[13] (DE 24-1 ¶ 117; DE 26-1 ¶ 117).

         On 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 ¶ 122).

         Northern 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.[14] (DE 24-1 ¶ 123; DE 26-1 ¶ 123). Northern Highlands did not provide them a PRISE booklet until the IEP meeting on October 13. (Id.).

         B. Procedural History

         On May 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).

         On 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 following:
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. ยง 1412(a)(10)(C)(iii) have on their request for reimbursement of tuition and ...

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