K.L. v. BERLIN BOROUGH BOARD OF EDUCATION

Filing 11

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/7/13. (dd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

K.L., individually and on
behalf of R.L.,

HON. JEROME B. SIMANDLE
Civil No. 13-4215 (JBS/JS)

Plaintiff,
v.

OPINION

BERLIN BOROUGH BOARD OF
EDUCATION,
Defendants.

APPEARANCES:
Catherine Reisman, Esq.
REISMAN COROLLA GRAN LLP
19 Chestnut Street
Haddonfield, NJ 08033-1810
Attorney for Plaintiff K.L., individually and on behalf of
R.L.
Allan P. Dzwilewski, Esq.
Christopher A. Dwilewski, Esq.
SCHWARTZ, SIMON, EDELSTEIN, CELSO & KESSLER
100 S. Jefferson Road
Suite 200 Whippany, NJ 07981
Attorney for Defendant Berlin Borough Board of Education
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter is before the Court on the motion of Plaintiff

K.L., on behalf of R.L., for preliminary injunction and order to
show cause in the above action.

[Docket Item 3.]

At oral

argument, the parties consented to converting the hearing into
the final injunction hearing pursuant to Fed. R. Civ. P. 65.
This action is brought by K.L., on behalf of her daughter, R.L.,

pursuant to Section 615(j) of the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. § 1415(j), and involves the
discrete issue of what R.L.'s pendent placement is under the IDEA
pending adjudication of Plaintiff's current due process petition
concerning R.L.'s proposed I.E.P. for in-district placement for
Extended School Year 2013 and for the 2013-2014 school year.
On July 2, 2013, the Honorable Patricia M. Kerins, ALJ
("ALJ") issued an Order denying Plaintiff's request that
Defendant Board of Education of Berlin Borough ("BOE" or
"Berlin") pay for R.L.'s continued placement at Orchard Friends
School ("Orchard").

In reaching this conclusion, the ALJ found

that Orchard was not R.L.'s "then-current educational placement"
pursuant to Section 615(j), 20 U.S.C. § 1415(j).

K.L. then filed

the instant action seeking to reverse the ALJ's decision.

This

Court has jurisdiction pursuant to 28 U.S.C. § 1331.

II.

BACKGROUND
The facts of this case are straightforward and mostly

undisputed.

R.L. was born on July 25, 2003 and resides with her

mother, K.L. within the area of Berlin, New Jersey.

R.L. is

eligible for special education and related services pursuant to
the IDEA and has the classification of "multiply disabled."
R.L. attended Berlin public school in 2009-2010 for her
Kindergarten year.

K.L. found the proposed Extended School Year

2

("ESY") program for the summer of 2010 inadequate and
consequently placed R.L. at Orchard for ESY 2010.
a program to R.L. for the 2010-2011 school year.

Berlin offered
R.L. then

attended the Berlin program for approximately three weeks in
September, 2010.

However, K.L. ultimately transferred R.L. to

Orchard for the remainder of the school year.

R.L. then

continued her education at Orchard pursuant to an IEP designed
and implemented by the Orchard Friends School for the 2010-2011,
2011-2012, and 2012-2013 school years and accompanying ESY
sessions.

This IEP was not approved by any state agency.

The last time R.L. was educated in Berlin was September
2010.

The Plaintiff alleges Berlin refused to make an offer of

FAPE from 2011-2013 unless R.L. dis-enrolled from Orchard.
Berlin neither admits nor denies these facts but maintains that
these allegations were the basis of a prior settlement with the
parties, which will be discussed, infra.

However, counsel for

Berlin did admit at oral argument that Berlin did not offer an
IEP to R.L. for the 2011-2012 or 2012-2013 school year.
On July 3, 2012, R.L. filed a request for mediation, seeking
reimbursement for the costs of attending Orchard for the ESY
2010, 2011, and 2012 and for the 2010-2011, 2011-2012 and 20122013 school years.

The parties initially failed to settle and

the request was converted to a due process hearing and
transmitted to the Office of Administrative Law.

3

However, the

parties ultimately settled and on March 13, 2013, the Honorable
John F. Russo, Jr., ALJ, issued a "Decision Approving Settlement"
which provided for the reimbursement of the 2011 and 2012 ESY
programs as well as the 2011-2012 and 2012-2013 school year
programs at Orchard.
The agreement also states, in pertinent part, that "K.L.
agreed to waive rights under IDEA, including procedural rights
(with the exception of the pendency or stay put right set forth
in 20 U.S.C. § 1415; it being agreed and understood that pendency
or stay put issues are not being determined herein, with both
parties maintaining their respective positions regarding the
same); . . . "

(Ex. 2 at ¶ 3, pp. 3-4.)

In other words, the

parties specifically excluded the issue of whether Berlin public
schools or Orchard Friends School was the proper "stay put"
placement under § 1415(j) for the years at issue in the
compromise settlement.
In April 2013, Berlin proposed an IEP for R.L. that provided
for an in-district 2013 ESY and an in-district placement for the
2013-2014 school year.

K.L. did not consent on behalf of R.L.

and instead filed a due process petition which is currently
pending before the OAL.

Thus, there is no agreement as to K.L.'s

placement during the time she has attended Orchard from 2010
through June, 2013.
On June 19, 2013, R.L. filed a petition for emergent relief

4

with the New Jersey Office of Special Education Programs ("OESP")
seeking a finding that Orchard was R.L.'s pendent placement and
that R.L. would be permitted to stay at the ESY program at
Orchard at Berlin's expense.

K.L. asserted that the ESY program

at Orchard constituted the "stay put" placement for R.L. and
Berlin opposed.

The ALJ heard oral argument on the request for

relief on June 28, 2013 and issued her opinion denying emergent
relief on July 2, 2013.
The ALJ reasoned that Orchard was not R.L.'s "then-current
educational placement" pursuant to 20 U.S.C. § 1415(j) because
Berlin did not consent to R.L's placement at Orchard.

The ALJ

noted that K.L. unilaterally placed R.L. in Orchard's program and
Berlin never agreed to this placement.

The ALJ concluded that

the settlement agreement for reimbursement did not constitute an
agreement by Berlin that R.L.'s placement at Orchard was
appropriate.

Specifically, the settlement agreement never called

for placement at Orchard and only provide for a compromise
tuition reimbursement for past expenses.

This was insufficient,

according to the ALJ, to constitute an agreement by Berlin that
Orchard was an appropriate placement for R.L.

Importantly, the

ALJ noted that nothing under the IDEA prevented R.L. from staying
at Orchard.

The only issue is whether K.L. or Berlin would be

responsible to pay.

The ALJ concluded that K.L. would be

responsible for tuition at Orchard should R.L. remain there

5

during the pendency of the administrative proceedings.
The Plaintiff K.L., on behalf of R.L., filed the instant
action and motion for preliminary injunction seeking to reverse
the ALJ's decision.

K.L. argues that Orchard should be deemed

the "then-current educational placement" under 20 U.S.C. §
1415(j) and that Berlin should be required to pay tuition for the
2013 ESY program and the 2013-2014 school year during the
pendency of the administrative proceedings.

Berlin opposes and

argues that the ALJ decision should be upheld.

The Court heard

oral argument on July 30, 2013 and will now issue its decision.
The Opinion contains the Court's findings of fact and
conclusions of law upon the motion for injunctive relief,
pursuant to Rule 52(a)(2), Fed. R. Civ. P.

All counsel have

agreed that the preliminary injunction and final injunction
hearings are combined pursuant to Rule 65(a)(2), Fed. R. Civ. P.,
for purposes of determining the only issue presented by the
Complaint, namely, whether the ALJ's decision of July 2, 2013,
that K.L.'s present attendance at Orchard is not the "thencurrent educational placement" under Section 615(j) of the IDEA
should be affirmed or reversed.

III.

DISCUSSION
A.

Parties' Arguments

The Plaintiff argues that the ALJ erred by relying on the

6

fact that Berlin did not agree to the placement at Orchard in
determining R.L.'s "current educational placement."

The

Plaintiff maintains that the ALJ's decision minimized the
importance of parental participation in the special education
process and is incompatible with controlling Third Circuit
precedent.

Finally, the Plaintiff maintains that the ALJ

misinterpreted the case law relied upon in reaching the decision.
Berlin opposes Plaintiff's motion and urges the Court to
uphold the ALJ's decision.

First, Berlin maintains that the

decision below is correct as a matter of law.

Second, Berlin

points out that neither the Plaintiff nor the Defendant argue
waiver.

Finally, Berlin maintains that the ALJ properly

interpreted the relevant case law and Plaintiff's arguments to
the contrary are without merit.
The Plaintiff filed a reply in further support of her motion
which reiterates the arguments made in her moving papers.
B.

Standard of Review

"When reviewing an ALJ decision in an IDEA case, the
district court applies a de novo standard to questions of law."
C.T. ex. rel. M.T. v. Verona Bd. of Educ., 464 F. Supp. 2d 383,
385 (D.N.J. 2006).

In contrast, findings of fact by the ALJ are

considered by the district court under a modified de novo
standard of review which requires due weight be given to the
factual findings of the ALJ.

L.E. v. Ramsey Bd. of Educ., 435

7

F.3d 384, 389 (3d Cir. 2006).
Both parties agree that the issue before the Court is purely
an issue of law.

Therefore, the Court will apply a de novo

standard of review.
C.

Analysis

The issue before the Court is whether the ALJ erred in
concluding Orchard was not R.L.'s "current educational placement"
under Section 1415(j).
Section 1415(j) provides, in pertinent part, "During the
pendency of any proceedings conducted pursuant to this section,
unless the State or local educational agency and the parents
otherwise agree, the child shall remain in the then-current
educational placement of the child."

20 U.S.C. § 1415(j).

In

addition, it is well established that Section 1415(j) functions
as an automatic preliminary injunction such that the typical
requirements for injunctive relief do not apply.

Drinker v.

Colonial School District, 78 F.3d 859, 864 (3d Cir. 1996).

The

Third Circuit has held that "the dispositive factor in deciding a
child's 'current educational placement' should be the [IEP] . . .
actually functioning when the 'stay put' is invoked."
867.

Id. at

The Third Circuit explained:
Implicit in the maintenance of the status quo is the
requirement that a school district continue to finance an
educational placement made by the agency and consented to
by the parent before the parent requested a due process
hearing. To cut off public funds would amount to a
unilateral change in placement, prohibited by the Act.
8

Id. at 865 (quoting Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir.
1982)).
However, "where a parent unilaterally removes a child from
an existing placement determined in accordance with state
procedures, and puts the child in a different placement that was
not assigned through proper state procedures, the protections of
the stay-put provision are inoperative until the state or local
educational authorities and the parents agree on a new
placement."

Michael C. ex rel. Stephen C. v. Radnor Twp. Sch.

Dis., 202 F.3d 642, 651 (3d Cir. 2000).

"Only once state

authorities and parents have reached such agreement does a 'thencurrent educational placement' come into existence."

Id.

In this case, it is undisputed that R.L. was removed from
the Berlin program in September 2010 and this removal was done
unilaterally by K.L.

Consequently, the last educational

placement of R.L. in September 2010 was the in-district placement
in Berlin pursuant to the IEP then in effect.
Plaintiff argues that Berlin refused to offer R.L. an IEP
program from 2011-2013 and consequently, for those school years,
Plaintiff did not remove R.L. from a state program.

Plaintiff

essentially argues that the stay-put provision should be
restarted every school year, regardless of whether a parent has
already unilaterally removed a child from an existing state
program.

9

Plaintiff's argument is unpersuasive and against controlling
precedent.

Case law is clear that once a parent unilaterally

removes a child from an existing state program governed by an
IEP, the protections of the stay-put provision cease until the
parent and the school agree on a new placement.

The Third

Circuit, in Michael C., supra, expressly addressed a parent's
decision to unilaterally enroll a child in private school and the
financial risk entailed.

Specifically, the Third Circuit

explained:
[I]f parents believe that private school placement
remains the only way to provide the student with the
educational benefit required by the IDEA, or otherwise
disagree with an IEP proposal, they can place the child
in a private school, initiate a due process hearing, and
seek reimbursement from educational authorities later. Of
course, they act at their own financial risk, and will
recover only if they are correct that local authorities
have failed to provide the educational program to which
their child is entitled under the IDEA.
Michael C., 202 F.3d at 651 (citations omitted).

Therefore,

Plaintiff's argument that the protections of stay-put should
apply absent an agreement between K.L. and Berlin is without
merit.

Plaintiff unilaterally removed R.L. from a functioning

IEP program at Berlin and enrolled R.L. in a private school
without seeking Berlin's consent.

Consequently, Berlin is the

operative stay-put placement unless it can be shown that Berlin
subsequently agreed to Orchard as a proper placement.
The main issue is whether the settlement agreement approved
by the Board of Education and ALJ Russo constituted an agreement
10

between the parties that Orchard was an appropriate placement for
R.L.

If it did, then the stay-put provision of § 1415(j) would

recognize Orchard as the "then-current educational placement" and
Plaintiff's motion should be granted.

If it did not, then

Orchard cannot be considered R.L.'s "then-current educational
placement," and Berlin would be, pending resolution of the
ongoing due process petition before the ALJ.
The ALJ below found that the settlement agreement was simply
an agreement for reimbursement and did not constitute an
agreement between the parties that Orchard was a proper
placement.

The ALJ based this conclusion on the factual finding

that the record did not show that an IEP was in place between
Plaintiff and Berlin when due process was sought on June 18,
2013.

(ALJ Decision, Ex. 2 at 5.)

The ALJ reasoned that the

settlement only provided for reimbursement and did not on its
face determine placement.

In addition, neither party waived its

rights regarding the stay-put issue.

(ALJ Decision, Ex. 2 at 7.)

The Court will uphold the ALJ decision and likewise finds that
Orchard is not R.L.'s "then-current educational placement" for
purposes of the stay-put provision.
The settlement agreement here expressly states that
"pendency or stay put issues are not being determined herein,
with both parties maintaining their respective positions
regarding the same."

(Settlement Agreement ¶ 3.)

11

There is no

agreement by the parties with respect to placement embodied in
the settlement.

Rather, it is clear that the parties contested

the proper placement and sought to mutually preserve their rights
to raise these issues in a later proceeding.

Consequently, the

settlement agreement is merely an agreement for reimbursement and
does not constitute an agreement between Berlin and K.L. about
R.L.'s placement at Orchard.
Furthermore, Plaintiff's counsel admitted at oral argument
that the IEP developed by Orchard for R.L. was not approved by
the state.

Therefore, the Court cannot conclude that another

state agency approved of R.L.'s placement in Orchard.

If another

state agency had approved of this placement, it would be a much
closer question.1
Plaintiff's reliance on Pardini v. Allegheny Intermediate
Unit, 420 F.3d 181 (3d Cir. 2005) is misplaced.

In Pardini, the

Third Circuit held that a child receiving IDEA services in the
form of an Individualized Family Service Plan ("IFSP") was
entitled to have her IFSP services continued while litigating the
appropriateness of a proposed IEP.

Id. at 182.

The child in

Pardini, who was turning three, was transitioning from IFSP
services for children zero to three years old to IEP services for
children three years and up.

Id. at 182, 185.

1

The parents

Indeed, Plaintiff's counsel admitted at oral argument that
Orchard is not a New Jersey approved special education school.
12

disputed the removal of conductive education from the proposed
IEP because conductive education was included as part of the
current IFSP.

Id. at 182.

The child's IFSP plan was approved

and implemented by a state agency.

Id.

The Third Circuit held that the child was entitled under the
stay put provision to receive conductive education services while
the proposed IEP was being litigated.

Id. at 190-191.

In

reaching this conclusion, the Third Circuit reasoned that "the
IDEA both anticipates and condones the possible
interchangeability of an IFSP and an IEP during transition to
preschool."

Id. at 191.

Thus, the school district's obligations

pending a due process hearing were to provide the services last
agreed to in the IFSP plan . . . administered by a state agency
when the current IDEA claim erupted.
This is distinct from the instant case.

In Pardini, the

child was transitioning from one state-approved IDEA program to
another state-approved IDEA program.

Here, R.L. is attempting to

stay put in a unilateral placement in a private school which was
never approved by a state agency.

The stay put provision does

not apply to such a situation and Pardini does not hold
otherwise.
Next, Plaintiff argues that the E.D. Pa. case Lauren W. v.
Bd. of Educ., 2002 U.S. Dist. LEXIS 18303, *1 (E.D. Pa. Sept. 12,
2002).

After reviewing this case, the facts here are distinct

13

from Lauren W., despite Plaintiff's representations to the
contrary.

In Lauren W., the school district contested

Plaintiff's current placement and had previously reimbursed the
Plaintiff for private school.
*7.

2002 U.S. Dist. LEXIS 18303, at

The district court concluded that the private school was the

child's "then-current educational placement" for the stay-put
provision.

Id. at *10-11.

In reaching this conclusion, the

district court expressly found that the Board "accepted a
recommendation that Lauren continue to be placed at [the private
school], and approved payment of the tuition costs for Lauren's
placement at [the private school].

Id. at *5.

The district

court reasoned that "the parties' agreement as to [the private
school] being an appropriate placement for Lauren for the 20002001 school year compels this court to conclude that [the private
school] became Lauren's "then-current educational placement" as
of the 2000-2001 school year pursuant to § 1415(j)."

Id. at *10.

This is distinguishable from the case at bar, despite
Plaintiff's counsel's representations to the contrary.2

2

In this

Plaintiff's counsel was also the counsel for the
plaintiffs in Lauren W. Plaintiff's counsel admits that the
district court opinion finds that the school board agreed to
place Lauren in private school; however, Plaintiff's counsel
maintains that no agreement ever took place and this factual
finding is erroneous. This Court is in no position to doubt the
explicit factual findings contained in the district court's
written opinion. The Third Circuit did not reach a contrary
factual finding in its subsequent decision, Lauren W. v.
DeFlaminis, 480 F. 3d 259 (3d Cir. 2007). Therefore, the Court
finds Plaintiff's contrary factual representations without merit.
14

case, the Board approved a compromise on Plaintiffs' claim for
tuition reimbursement for the years 2010-13 and for ESY's 2010,
2011 and 2012, but expressly reserved the right to contest
placement for stay-put purposes.

There is no evidence that the

Board can be found to have agreed to R.L.'s placement at Orchard
when the written settlement agreement expressly denies such an
agreement and preserves both parties' rights.

Therefore, Lauren

W. is distinguishable and does not support the proposition that
the "then-current educational placement" is a unilateral
placement.
Finally, the Plaintiff argues that since no IEP was in place
at the time the dispute arose, R.L.'s current educational
placement is where R.L. is actually receiving instruction, which
is Orchard.

This proposition finds support in the Third

Circuit's analysis in Drinker, only if no prior IEP had been
implemented.

The Court of Appeals explained:

Because the term connotes preservation of the status quo,
it refers to the operative placement actually functioning
at the time the dispute first arises. If an IEP has been
implemented, then that program's placement will be the
one subject to the stay put provision. And where . . .
the dispute arises before any IEP has been implemented,
the 'current educational placement' will be the operative
placement under which the child is actually receiving
instruction at the time the dispute arises.
Drinker, 78 F.3d at 867 (quoting Thomas v. Cincinnati Bd. of
Educ., 918 F.3d 618, 625-26 (6th Cir. 1990)).
However, Plaintiff's argument ignores one key fact -

15

Plaintiff unilaterally removed K.L. from the state-approved,
functioning IEP program at Berlin in 2010.

Consequently,

Plaintiff relinquished the protections of the stay-put provision
at her own financial risk as of 2010.

While there was no

functional IEP in place at the time the dispute arose, this was a
circumstance of Plaintiff's making.

The Plaintiff chose to leave

the Berlin IEP in September 2010 and this IEP was the last
functional IEP between the parties.

Consequently, this dispute

did not arise before a functional IEP was in place - it arose
after the Plaintiff unilaterally removed R.L. from a functional
IEP placement at Berlin.
Therefore, the Court finds that Orchard is not R.L.'s
"current educational placement" for purposes of § 1415(j).

The

Plaintiff unilaterally removed R.L. from the Berlin IEP program
in September 2010.
Orchard.

The Board never agreed to R.L.'s placement at

"Only once state authorities and parents have reached

such agreement does a 'then-current educational placement' come
into existence."

Michael C., 202 F.3d at 651.

Since no

agreement was reached between the parties with regard to
placement at Orchard, or for the implementation of an IEP at
Orchard, Orchard cannot now be considered R.L.'s "then-current
educational placement," and the obligation to pay for R.L.'s
educational expenses at Orchard pending the ALJ's adjudication of
Plaintiff's due process petition remains with Plaintiff.

16

As the

Third Circuit made plain in Michael C., Plaintiffs act at their
own financial risk "and will recover only if they are correct
that local authorities have failed to provide the educational
program to which their child is entitled under the IDEA."
Michael C., supra, 202 F.3d at 651.

IV.

CONCLUSION
Accordingly, the decision of the ALJ will be affirmed and

Plaintiff's motion for injunctive relief pending adjudication of
Plaintiff's due process hearing will be denied.

The Court will

enter the accompanying Order.

August 7, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

17