Moorestown Twp. Bd. of Educ. v. S.D ex rel. M.D.

• Decision Date: 15 September 2011
• Docket Number: Civil No. 10–0312(RMB/JS).
• Citation: 276 Ed. Law Rep. 196,43 NDLR P 279,811 F.Supp.2d 1057
• Parties: MOORESTOWN TOWNSHIP BOARD OF EDUCATION, Plaintiff, v. S.D. and C.D. on behalf of M.D., Defendants.
• Court: U.S. District Court — District of New Jersey

276 Ed. Law Rep. 196

43 NDLR P 279

811 F.Supp.2d 1057

MOORESTOWN TOWNSHIP BOARD OF EDUCATION, Plaintiff,

v.S.D. and C.D. on behalf of M.D., Defendants.

Civil No. 10–0312(RMB/JS).

United States District Court, D. New Jersey.

Sept. 15, 2011.

John B. Comegno, II, Esquire, Scott Jonathan Good, Comegno Law Group, P.C., Moorestown, NJ, for Plaintiff.

Amelia Carolla, Esquire, Reisman Carolla Gran LLP, Haddonfield, NJ, for Defendants.

OPINION

BUMB, District Judge:

Plaintiff, the Moorestown Township Board of Education (“Moorestown” or the “District”), seeks judicial review of an administrative determination that it failed to offer M.D., a child with learning disabilities, a free and appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education Act (“IDEA” or the “Act”), 20 U.S.C. § 1400, et seq. M.D. was initially enrolled in public school in the Moorestown School District, where he received special education services under the Act. His parents subsequently moved him to a private school due to concerns that he was not making sufficient progress. After a year and a half at the private school, his parents asked Moorestown to evaluate M.D. and formulate an Individualized Education Plan (“IEP”) for him, so they could determine whether Moorestown could provide him a FAPE. Moorestown refused to do the evaluations until M.D. re-enrolled in the District. M.D.'s parents, however, were unwilling to withdraw him from the private school for fear he would not only lose his spot there but also find himself without an appropriate education in the public school. Thus, the primary issue presented by this appeal is whether Moorestown had an obligation to provide an IEP to a privately enrolled child whom it had already found eligible for special education services and whom it knew resided in the District.

Currently before the Court are two motions for summary judgment: the first by Moorestown and the second by defendants S.D. and C.D., on behalf of their son, M.D. (collectively the “Defendants”). For the reasons set forth below, the Court denies, in part, and grants, in part, both motions.¹

I. BACKGROUND

The following facts are undisputed. M.D. lives with his parents, S.D. and C.D., in Moorestown, New Jersey. He was born December 27, 1995, and was diagnosed with PDD–NOS, a form of autism, sensory integration dysfunction and Attention Hyperactivity Disorder in May 1999. As a result of his disability, M.D. has received special education services from Moorestown since 1999. During the 2005–2006 school year, while M.D. was a fourth grade student at Upper Elementary School in Moorestown, New Jersey, he was classified as “multiply disabled” and placed in a general education classroom with in-class supports and special literacy and math instruction.

On May 12, 2006, Defendants attended an IEP ² team meeting for M.D. at Upper Elementary School to determine an appropriate program of services and placement for the 2006–07 school year. The IEP team proposed various changes to the IEP, and M.D.'s parents expressed concerns regarding the proposed levels of support and M.D.'s overall progress. Accordingly, the IEP team agreed to re-evaluate M.D. in order to determine his current levels of functioning and to ensure that he was provided with an appropriate program and placement.

The IEP team reconvened on July 24, 2006, to review and update M.D.'s IEP, giving consideration to the data provided by the re-evaluation. The parties dispute the results of this meeting, specifically whether Defendants expressed dissatisfaction or concerns with the proposed IEP. This dispute is irrelevant for purposes of this appeal.

Shortly after the IEP team meeting, on August 23, 2006, Defendants notified Moorestown that they would be unilaterally placing M.D. at Orchard Friends School (“Orchard”), a private school located in Moorestown at the time, ³ for the 2006–07 school year. They requested reimbursement. Moorestown advised Defendants that M.D. could be properly accommodated in a less-restrictive placement and that it was not authorized to place students at Orchard, since it was not approved as a private school for the disabled by the New Jersey Department of Education.

M.D.'s parents nonetheless chose to enroll M.D. at Orchard. Defendants claim the District informed them that it was unable to place children at Orchard, even though this was untrue, because it was paying for another student to attend that school. Moorestown maintains that it informed Defendants that M.D. could only be placed at Orchard under a “Naples Placement,” which requires the IEP team to consider nine lesser restrictive placements first. Based on the District's alleged misrepresentation, M.D.'s parents notified Moorestown on August 31, 2006, that they had voluntarily decided to enroll M.D. at Orchard and that they would be fully responsible for tuition payments.

M.D. attended Orchard for the entire 2006–07 school year. During M.D.'s second year at Orchard, Defendants requested that Moorestown meet with them to discuss a proposed IEP so that they could determine whether to return to Moorestown or continue at Orchard. Specifically, on December 13, 2007, Defendants, through their attorney, sent a letter to Barbara Fash, Director of Special Education at Moorestown. The letter stated:

I am writing to advise you that I have been retained to represent [M.D.] with regard to his education within Moorestown School District.

[W]e are requesting that the child study team conduct appropriate evaluations for [M.D.], who is currently attending Orchard Friends School, including: neuropsychological evaluation, speech and language assessment, learning assessment, assistive technology assessment and occupational therapy assessment.

C.D. Decl. Ex. G (Dkt. Ent. 34–24) (emphasis added). Moorestown did not respond.

On January 17, 2008, Defendants' attorney sent a follow-up letter, which stated in relevant part:

In light of the time deadlines imposed upon you by the law, I am asking that you contact us immediately so that the evaluations may begin. If the District does not meet the necessary deadlines, we will have no choice but to file a complaint investigation with the State of New Jersey.

C.D. Decl. Ex. H (Dkt. Ent. 34–25).

On January 30, 2008, Defendants' attorney wrote a third letter to Ms. Fash. This letter stated:

On December 13, 2007, I wrote to you on behalf of [M.D.] to request numerous evaluations from Moorestown School District. I followed up with you on this request on January 17, 2008, but we still have heard nothing from you. The ninety days the school district has to complete the evaluations and develop and propose an IEP expires on March 12, 2008.

The evaluations and IEP must be completed in a timely manner, if not, my clients will not be able to have a meaningful discussion about the District's proposed program before having to decide whether to continue [M.D.'s] placement at Orchard Friends School for this and next year. Please contact the parents immediately to arrange the necessary evaluations.

C.D. Decl. Ex. I (Dkt. Ent. 34–26) (emphasis added).

On January 31, 2008, counsel for Moorestown finally responded, advising Defendants that because M.D. was not enrolled as a student in the District, any request for “consideration of initial eligibility” under the IDEA should be directed to the Burlington County Educational Services Unit. C.D. Decl. Ex. J (Dkt. Ent. 34–27).

On February 5, 2008, through their attorney, M.D.'s parents again wrote to the District and explained that the evaluations were being sought not for the purposes of providing M.D. with related services at Orchard, but instead to bring him back to the District if this was possible. Specifically, the letter stated:

The purpose of my writing on December 13th, January 17th, January 30th and again today is to request evaluations for this child to determine if Moorestown School District can offer him a program that complies with FAPE. A referral to the Burlington County Educational Services Unit is inappropriate because we are not seeking the provision of services at Orchard Friends School by the Moorestown School District.

C.D. Decl. Ex. K. Moorestown did not respond to this letter. In fact, Moorestown denies that it or its counsel ever received this letter.

On September 3, 2008, M.D.'s parents filed a complaint for due process, seeking reimbursement for M.D.'s 2006–07 school year, on the grounds that the IEP Moorestown offered did not provide a FAPE, and for the 2007–08 and 2008–09 school years because the District failed to offer M.D. any IEP at all. On that same day, counsel for Moorestown sent a letter to M.D.'s parents' attorney indicating that it would no longer transport M.D. to Orchard Friends but would reimburse Defendants the statutory cost to transport him pursuant to N.J. Stat. Ann. § 18A:39–1. C.D. Decl. Ex. N. The letter further stated, in relevant part:

[A]s discussed before at length, [Moorestown] is not required to re-evaluate M.D. for accommodations as he is not enrolled as [a] student of the Moorestown Township School District. Since M.D. attends the Orchard Friends School, any request for consideration of eligibility under the Individuals with Disabilities in Education Act or N.J.A.C. 6A:14–1.1 et seq. or other special education or related services needs should be forwarded to the Burlington County Educational Services Unit.

Alternatively, if your clients desire to have a child study team in [Moorestown] evaluate M.D. for special education and related services, they always have the option of enrolling M.D. with the Moorestown Township School District.

C.D. Decl. Ex. N (emphasis added).

During the pendency of the due process hearing in 2009, both parties continued to dispute the prerequisites for M.D.'s IEP meeting with Moorestown: the District insisted upon M.D.'s formal re-enrollment and even sent Defendants a registration packet. Defendants refused to complete the...