L.M. et al v. WILLINGBORO TOWNSHIP SCHOOL DISTRICT
OPINION. Signed by Judge Joseph H. Rodriguez on 6/12/2017. (tf, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
L.M. and M.M. o/b/o G.M.,
Hon. Joseph H. Rodriguez
Civil Action No. 16-3672
WILLINGBORO TWP. SCH. DIST.,
This matter is before the Court on Plaintiffs’ motion for summary
judgment and to supplement the record [Doc. 16] and on Defendant’s crossmotion for summary judgment and to supplement the record [Doc. 18]. Oral
argument was held May 31, 2017 and the record of that proceeding is
incorporated here. For the reasons placed on the record that day and those
below, Plaintiffs’ motion will be granted in part and denied in part and
Defendant’s motion will be denied.
Factual Background & Procedural History
This essentially is an appeal of a case brought pursuant to the
Individuals with Disabilities Education Act (“IDEA”), which requires that
school districts that receive federal funding provide children with disabilities
with a “free and appropriate education,” or “FAPE.” 20 U.S.C. § 1402(9).
G.M., born May 10, 2008, is multiply disabled with diagnoses of
neurofibromatosis type 1, a submucous cleft palate, mixed receptive1
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expressive language disorder, sensory integration dysfunction, a genetic
deletion (missing about 36 genes) and gastrointestinal/feeding difficulties.
Because of G.M.’s multiple medical conditions, she has learning differences,
global decreased muscle tone, severe speech and developmental delays, and
attentional difficulties. G.M.’s parents, L.M. and M.M., have brought suit
here on their daughter’s behalf.
On March 8, 2012, G.M’s parents requested an evaluation of G.M. by
the Defendant Willingboro Township School District (“School District”) in
an effort to obtain special education and related services for her. An
eligibility meeting was held on April 20, 2012, attended by a case manager
for Defendant and the parents of G.M. The School District arranged to
conduct evaluations for speech and language, an educational assessment,
and a social history. On June 8, 2012, the School District conducted a basic
screening for preschool eligibility, which revealed that G.M. had delayed
abilities, but the screening provided no information about a child’s deficits
and needs. On July 31, 2012, the parents requested a more formal speech
and language evaluation, but were advised such was not required for
preschool because the School District relies on therapists providing speech
and language, occupational, and other therapies to start working with the
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student and then evaluate delays and disabilities. On August 15, 2012, the
School District determined G.M. eligible for special education.
In September 2012, the parents rejected as inadequate the Individual
Education Program (“IEP”) offered by the School District for 2012-13; they
felt that the modified regular curriculum proposed would be too difficult for
G.M. because of her significant delays, and that there were many
uncertainties with the program being offered. Instead, the parents elected to
continue G.M.’s private placement at First Light Learning Center where she
received occupational therapy, physical therapy, and speech and language
therapy. The parents also provided the School District with recent
evaluations they had obtained covering physical, occupational, and speech
and language therapy confirming G.M.’s deficits in these areas. In May 2013,
the parents retained a pediatric neuropsychologist and provided a copy of
her evaluation to the School District along with medical information from a
treating physician at Children’s Hospital of Philadelphia.
An IEP meeting was held on September 5, 2013 1, after the school year
had started, to discuss a proposed IEP for the 2013-14 school year. The IEP
of September 5, 2013 proposed no related services because the School
Parents requested an IEP meeting for 2013-14 on February 8, 2013. They
followed up on March 18, 2013, May 7, 2013, July 25, 2013, August 15,
2013, and August 19, 2103.
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District had not completed any evaluations. Rather, the School District again
proposed to add related services later in the school year in accordance with
its usual practice of having the teacher and related service providers
evaluate the student’s skill levels in the classroom during the school year.
The parents again disagreed with the level of services to be provided and
rejected the proposed IEP as inadequate. They requested independent
therapy evaluations be conducted but the School District refused.
On October 14, 2013, G.M.’s parents brought a complaint for due
process in New Jersey’s Office of Administrative Law (“OAL”) alleging that
the School District failed to offer their daughter G.M. a FAPE for the 201213 and 2013-14 school years. Parents’ due process complaint also requested
that the School District fund independent educational evaluations (“IEEs”)
in the areas of speech and language, occupational therapy, and physical
At a November 18, 2013 settlement conference at the OAL, the parties
agreed that G.M. would try the School District’s program while their case
proceeded; G.M. began to attend the program on January 7, 2014. Following
a dispute over the independent evaluators, by Decision and Order dated
February 4, 2014, Administrative Law Judge (“ALJ”) John R. Futey granted
partial summary decision in Plaintiffs’ favor and ordered the School District
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to fund IEEs of G.M. in the areas of speech and language, occupational
therapy, and physical therapy. (Am. Compl. ¶¶ 19-22, Ex. A.)
Thereafter, the case moved from judge to judge in New Jersey’s OAL
four times until the case was assigned to the Honorable Joseph F.
Martone, ALJ. The parties participated in a trial presenting witnesses and
evidence for eighteen nonconsecutive hearing dates beginning in April,
2014 and concluding in April, 2015. (Id. ¶¶ 24-27.) On or about May 19,
2014, Defendant offered basically the same IEP for G.M.’s 2014-15 school
year, and the parents again rejected it. The only change in the 2014-15 IEP
as opposed to prior years was that speech therapy was increased by a half
hour. As such, the parents did not believe that G.M. would receive FAPE
under the 2014-15 IEP. On February 6, 2015, an Order was entered
allowing Plaintiffs to amend their due process complaint to include a
challenge to the 2014-15 IEP.
On or about June 22, 2015, the parties submitted written closings.
Almost a full year later, by Decision and Order dated May 26, 2016, ALJ
Martone found in favor of the Plaintiffs. G.M. was five-years old when the
case started; she was eight-years old by the time the hearing was over and
a decision issued. (Id. ¶ 30, Ex. B.) The OAL Order:
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Granted Plaintiffs’ request for a finding that the School
District failed to provide G.M. with FAPE from January 7,
2013 until the end of the 2012-13 school year; the entirety of
2013-14 and ESY 2014; 2014-15 and ESY 2015;
Granted Plaintiffs’ request for compensatory education by
finding that Plaintiffs are entitled to an award of
compensatory education from the School District equal to the
time period during the school years 2012-13, commencing
January 7, 2013; 2013-14, and 2014-15, during which the
Defendant failed to provide FAPE, including ESY; and
Granted the Plaintiffs’ request for an appropriate placement by
prospectively ordering the School District to place G.M. at the
Durand Academy, an approved school for children with
disabilities in New Jersey, including costs of related services
(Id. ¶ 30, Ex. B, ¶¶ 34-39.) ALJ Martone also found that the parents’
unilateral placement at First Light was not proven to address G.M.’s
disabilities and therefore would not be reimbursed, even though the School
District’s IEPs failed to comply with the requirements for providing FAPE.
Specifically, the ALJ determined that no present levels of academic
performance were provided in any of the three proposed IEPs; thus, there
would have been no way to measure G.M.’s progress as to the goals and
objectives in the proposed IEP. As such, there were to be no specific
accommodations or modifications for G.M. until the classroom teacher had
an opportunity to assess her needs. Similarly, the decision whether to
provide an extended school year was to be determined at a later date. Thus,
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a review of the goals and objectives in each of the three IEPs revealed that
they failed to meet the requirements that there be a statement of
measurable annual goals including specific short-term objectives or
benchmarks against which the student’s progress could be determined.
Further, School District’s Child Study Team (“CST”) failed to comply
with the requirement to complete a comprehensive evaluation in order to
determine G.M.’s eligibility for special education as required by N.J.A.C.
6A:14-2.5(a)(2). The CST failed to comply with the requirement to have the
evaluations consist of a multi-disciplinary assessment in all areas of
suspected disability as required by N.J.A.C. 6A:14-2.5(b)(2) and (b)(3). The
CST also failed to comply with the requirement to have each evaluation
include a functional assessment of the student’s academic performance and,
where appropriate, behavior as required by N.J.A.C. 6A:14-3.4(f)(3). Finally,
the CST failed to comply with the requirement to include an evaluation by
an appropriate specialist if the child is identified as possibly communication
impaired, as in this case. N.J.A.C. 6A:14-3.4(a); N.J.A.C. 6A:14-3.5(c).
Because of these failures to comply with the applicable requirements,
the ALJ found the IEPs proposed by the school district to be deficient, as
they failed to establish the rationale for the student’s educational placement
and services and for program implementation. Accordingly, because of the
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serious failures on the part of the School District to comply with IDEA
requirements for evaluation, identification, classification of G.M. as a
student with disabilities and the serious deficiencies noted with respect to
the IEP, the ALJ found that the program and placement offered by the
School District to G.M. also failed to provide FAPE to G.M. because they
failed to establish the rationale for the student’s educational placement and
services and for program implementation.
On June 23, 2016, Plaintiffs filed this action requesting that this
Court find that they are prevailing parties under 20 U.S.C. § 1415(i)(3)(B)
and 29 U.S.C. § 794(a)(2) at both the administrative level and before this
Court, and as such are entitled to reasonable attorney’s fees, costs, and
expert costs under the IDEA and Section 504 of the Rehabilitation Act. (Id.
¶¶ 31-35, p. 15.) Next, Plaintiffs request that this Court find that the ALJ
erred when he determined that the School District did not provide FAPE
for the 2012-13 school year, but only awarded compensatory education
from January 7, 2013 forward instead of from the start of that school year.
(Am. Compl. ¶¶ 36-42.) Third, Plaintiffs request that this Court allow them
to supplement the record pursuant to 20 U.S.C. § 1415(i)(2)(A) and award
G.M. compensatory education for the 2015-16 school year, as the IEP and
program for that year was nearly identical to the one the Defendant
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proposed in 2012-13, 2013-14, and 2014-15, all of which the ALJ found to
be inadequate and not in accordance with the law. (Id. ¶¶ 43-50.) Plaintiffs
also ask this Court to calculate the hours of compensatory education
awarded to G.M. in terms of a dollar amount, and order that the funds be
placed into a trust fund for G.M.’s benefit so that the parents could use the
funds to obtain appropriate educational and rehabilitative services for
G.M. (Id. ¶¶ 51-62.)
On July 11, 2016, instead of filing a counterclaim, the School District
filed a separate action in this Court appealing the OAL’s ruling,
Willingboro Township School District v. L.M. and M.M. o/b/o G.M.,
Docket Number 1:16-cv-04160. This Court granted Plaintiffs’ Motion to
Consolidate the two cases. The School District asks that this Court reverse
all of the OAL’s findings, alleging that finding in Plaintiffs’ favor was error
because the IEPs offered constituted FAPE. Alternatively, Defendant
argues that because the parents have not enrolled G.M. in Durand, but
elected to place G.M. in Orchard Friends Academy for 2016-17, they have
been uncooperative and, therefore, there is a genuine issue of material fact
at least regarding placement of the child. On this issue, Defendant has
sought to supplement the record.
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Summary Judgment Standard
“Summary judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law.” Pearson
v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56
(a). Thus, the Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and supports the
showing that there is no genuine dispute as to any material fact by “citing to
particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, interrogatory answers, or other materials.” Fed.
R. Civ. P. 56 (c)(1)(A).
An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences drawn
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from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once
the moving party has met this burden, the nonmoving party must identify,
by affidavits or otherwise, specific facts showing that there is a genuine issue
for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254,
1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for
summary judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon mere
allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus.,
Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d
Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a
fact cannot be genuinely disputed by showing that “an adverse party cannot
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produce admissible evidence to support the [alleged dispute of] fact.” Fed.
R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of
the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
Standard of Review under IDEA
In deciding an appeal from the decision of an Administrative Law
Judge, this Court must apply a “modified de novo” standard of review. D.S.
v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010). The party
challenging an administrative decision bears the burden of persuasion and
“faces the additional hurdle of overcoming a presumption that the [ALJ’s]
findings were correct.” Andrew M. v. Delaware Cnty. Office of Mental
Health & Mental Retardation, 490 F.3d 337, 345 (3d Cir. 2007).
That is, this court must give “due weight” to the factual findings of the
administrative proceedings. D.S., 602 F.3d at 564; see also Moorestown
Twp. Bd. of Educ. v. S.D., 811 F. Supp.2d 1057, 1064 (D.N.J. 2011); Shore
Reg’l High Sch. Bd. of Ed. v. P.S., 381 F.3d 194, 199 (3d Cir. 2004); S.H. v.
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State Operated Sch. Dist. of the City of Newark, 336 F.3d 260, 269-70 (3d
Cir. 2003). Because “factual findings from the administrative proceedings
are to be considered prima facie correct,” the reviewing court must justify
failure to adhere to those findings. Shore Reg’l, 381 F.3d at 199 (quoting
S.H., 336 F.3d at 271).
This Court must accept the ALJ’s credibility determinations unless the
non-testimonial, extrinsic evidence in the record would justify a contrary
conclusion. Shore Reg’l, 381 F.3d at 200; Moorestown, 811 F. Supp. at 1064;
D.S., 602 F.3d at 564. “[I]n this context, the word ‘justify’ requires that the
applicable standard of review be essentially the same as that a federal
appellate court applies when reviewing a trial court's findings of fact.” D.S.,
602 F.3d at 564 (citing Shore Reg’l, 381 F.3d at 194). Federal appellate
courts review district courts’ factual findings for clear error. VICI Racing,
LLC v. T-Mobile USA, Inc., 763 F.3d 273, 283 (3d Cir. 2014). “A finding of
fact is clearly erroneous when it is ‘completely devoid of minimum
evidentiary support displaying some hue of credibility or bears no rational
relationship to the supportive evidentiary data.’” Id. (quoting Berg Chilling
Sys., Inc. v. Hull Corp., 369 F.3d 745, 754 (3d Cir. 2004)).
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The primary purpose of the IDEA is “to ensure that all children with
disabilities have available to them a free appropriate public education
[FAPE] that emphasizes special education and related services designed to
meet their unique needs.” 20 U.S.C. § 1400(d)(1). Thus, schools in states
that receive federal funding must provide “personalized instruction with
sufficient support services to permit the child to benefit educationally from
that instruction.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 203 (1982). The Third Circuit has further interpreted
this provision to require the educational program to provide special
education students with meaningful educational benefits. Polk v. Cent.
Susquehanna Intermediate Unit 16, 853 F.2d 171, 184 (3d Cir. 1988). “‘The
provision of merely more than a trivial educational benefit’ is insufficient.”
Ridley Sch. Dist. V. M.R., 680 F.3d 260, 269 (3d Cir. 2012) (quoting L.E. v.
Ramsey Bd. of Educ., 435 F.3d 384, 390 (3d Cir. 2006)).
School districts implement a FAPE by designing an IEP for each
special education student. 20 U.S.C. § 1414(d). The Third Circuit has
described the IEP as “the ‘centerpiece’ of the IDEA’s system for delivering
education to disabled children.” D.S., 602 F.3d at 557 (quoting Polk, 853
F.2d at 173). State educational authorities are required to “identify and
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evaluate disabled children, § 1414(a)-(c), develop an IEP for each one, §
1414(d)(2), and review every IEP at least once a year, § 1414(d)(4).” Schaffer
v. Weast, 546 U.S. 49, 53 (2005). The IEP must be “reasonably calculated to
enable the child to receive meaningful educational benefits in light of the
student’s intellectual potential.” D.S., 602 F.3d at 557 (quotations and
citations omitted). The Supreme Court has explained:
The ‘reasonably calculated’ qualification reflects a recognition
that crafting an appropriate program of education requires
prospective judgment by school officials. The Act contemplates
that this fact-intensive exercise will be informed not only by the
expertise of school officials, but also by the input of the child’s
parents or guardians. Any review of an IEP must appreciate that
the question is whether the IEP is reasonable, not whether the
court regards it as ideal.
Endrew F. v. Douglas Cty. Sch. Dist., --- U.S. ---, 137 S. Ct. 988, 999, 197 L.
Ed. 2d 335 (2017) (internal citations omitted). “To meet its substantive
obligation under the IDEA, a school must offer an IEP reasonably calculated
to enable a child to make progress appropriate in light of the child’s
The IEP must include: (1) a statement of the child’s present levels of
academic achievement and functional performance; (2) a statement of
measurable annual goals, including academic and functional goals; (3) a
description of how the child’s progress toward meeting the annual goals will
be measured and when periodic reports on the progress the child is making
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toward meeting the annual goals will be provided; (4) a statement of the
special education and related services and supplementary aids and services,
based on peer-reviewed research to the extent practicable, to be provided to
the child, or on behalf of the child, and a statement of the program
modifications or supports for school personnel that will be provided for the
child; (5) an explanation of the extent, if any, to which the child will not
participate with nondisabled children in the regular class and in other
activities; (6) a statement of any individual appropriate accommodations
that are necessary to measure the academic achievement and functional
performance of the child on State and district-wide assessments; and (7) the
projected date for the beginning of the services and necessary modifications,
and the anticipated frequency, location, and duration of those services and
modifications. 20 U.S.C. § 1414(d)(1)(A). A school district should have a fully
developed IEP in place at the beginning of each school year. 20 U.S.C. §
1401(9)(D); 1412(a)(1) and 1414(d)(2); C.H. v. Cape Henlopen Sch. Dist.
606, F.3d 59, 68 (3d Cir. 2010).
To compensate for past violations, “[a]ppropriate remedies under
IDEA are determined on a case-by-case basis.” D.F. v. Collingswood Bd. of
Educ., 694 F.3d 488, 498 (3d Cir. 2012). “Compensatory education is crucial
. . . and the courts, in the exercise of their broad discretion, may award it to
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whatever extent necessary to make up for the child’s lost progress and to
restore the child to the educational path he or she would have traveled but
for the deprivation.” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601,
625 (3d Cir. 2015) (citing D.F., 694 F.3d at 498-99). “The remedy of
compensatory education is available only where a student's substantive
rights are affected by a school district’s non-compliance with the IDEA.”
D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012). “Accordingly,
‘[a] procedural violation is actionable under the IDEA only if it results in a
loss of educational opportunity for the student, seriously deprives parents of
their participation rights, or causes a deprivation of educational benefits.’”
Ridley Sch. Dist. v. M.R., 680 F.3d 260, 274 (3d Cir. 2012) (quoting D.S.,
602 F.3d at 565). “One accepted form of compensatory education relief is
the establishment of a fund to be spent on the child’s education.” D.F., 694
F.3d at 498.
In this case, the School District has not shown that the ALJ’s finding
that the IEPs were inappropriate constituted clear error. Rather, the record
supports the ALJ’s finding that the School District did not provide G.M. with
FAPE during the relevant school years. Plaintiffs’ witnesses’ testimony
provided ALJ Martone with a basis to determine that the IEPs at issue did
not provide FAPE for G.M. This Court finds no reason not to accept the
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ALJ’s credibility determinations in favor of Plaintiffs’ witnesses and expert
reports, as opposed to those of the defense.
In the same vein, the Court does not find clear error in ALJ Martone’s
finding that compensatory education would be awarded commencing
January 7, 2013. “‘A disabled student's right to compensatory education
accrues when the school knows or should know that the student is receiving
an inappropriate education.’” P.P. v, West Chester Area Sch. Dist., 585 F.3d
727, 739 (3d Cir. 2009) (quoting Lauren W. v. DeFlaminis, 480 F.3d 259,
272 (3d Cir. 2007)). When a school fails to correct a situation in which a
disabled student “is not receiving more than a de minimis educational
benefit,” the “child is entitled to compensatory education for a period equal
to the period of deprivation, excluding only the time reasonably required for
the school district to rectify the problem.” M.C. v. Cent. Reg’l Sch. Dist., 81
F.3d 389, 391-92 (3d Cir. 1996).
Regarding the 2014-15 school year, the ALJ did not “reverse himself”
or represent that he would not consider the applicable IEP. Rather, he
limited the discovery of new evidence or testimony regarding G.M.’s
progress during the 2014-15 school year, but evaluated whether the 2014-15
IEP provided FAPE by looking at the design of the IEP itself to determine
whether it met IDEA’s procedural and substantive requirements.
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As to 2015-16, the Court will not make the initial determination as to
the propriety of the School District’s IEP. The IDEA provides that, in any
action brought pursuant to § 1415(e)(2), the district court “shall hear
additional evidence at the request of a party” and, “basing its decision on the
preponderance of the evidence, shall grant such relief as the court
determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(ii); accord 34 C.F.R. §
300.516(c)(2). “[T]he question of what additional evidence to admit in an
IDEA judicial review proceeding, as well as the question of weight due to the
administrative findings of fact, should be left to the discretion of the trial
court.” Susan N. v. Wilson School Dist., 70 F.3d 751, 760 (3d Cir. 1995).
“Additional evidence” does not refer to all evidence, but rather to
evidence that properly supplements the administrative record. Susan N., 70
F.3d at 759. The Third Circuit Court of Appeals has stated that “a district
court first must evaluate a party’s proffered evidence before deciding to
exclude it.” Id. While a district court appropriately may exclude additional
evidence, a court must exercise particularized discretion in its rulings. When
exercising this discretion, the court should be mindful of the IDEA’s
“general framework of deference to state decision-makers.” Antoine M. v.
Chester Upland Sch. Dist., 420 F.Supp.2d 396, 402 (E.D. Pa. 2006)
(quoting Susan N., 70 F.3d at 758). “[I]n determining whether to admit the
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proffered additional evidence,” the question for a district court is “would the
evidence assist the court in ascertaining whether Congress’s goal has been
and is being reached for the child involved.” Id. at 760. In this regard, the
trial court’s focus should be on allowing evidence that is “relevant, noncumulative and useful.” Id.
Before admitting additional evidence, “a court must determine
whether the party introducing the additional evidence has presented a
sufficient justification for not proffering the evidence at the administrative
hearing.” Antoine M., 420 F.Supp.2d at 403 (citing Susan N., 70 F.3d at
760). Factors that a court may consider in deciding whether to admit
additional evidence include (1) whether a procedural bar prevented the
introduction of the evidence at the administrative hearing; (2) whether the
party seeking admission of the evidence deliberately withheld it at the
hearing; (3) whether the introduction of the additional evidence would be
prejudicial to the opposing party; and (4) the potential impact of the
admission of the evidence on the administration of justice. Id.
Plaintiffs have asked this Court to consider the 2015-16 IEP issued on
June 4, 2015 and School District evaluations conducted in 2016 in the areas
of psychological, educational, speech and language, physical therapy, and
occupational therapy to determine that the 2015-16 IEP did not provide
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FAPE for G.M. While there is no barrier to the admissibility of this noncumulative evidence, it is this Court’s ruling, in light of the IDEA’s general
framework of deference to state decision-makers and out of caution for
Defendant’s right to due process, that it will not make a determination
regarding the 2015-16 IEP in the first instance.
Similarly, the Court will not allow the record to be supplemented by
the defense to include any information regarding G.M.’s current placement
for 2016-17 at Orchard Friends Academy. The School District’s argument
that the parents’ conduct creates a “new” dispute of fact to preclude
summary judgment is rejected as irrelevant to the ALJ’s decision regarding
the 2012-15 IEPs’ failure to provide FAPE.
The ALJ’s order provided G.M. with full days of compensatory
education from January 7, 2013 through the end of the 2012-2013 school
year (109 days), ESY 2013 (20 days), 2013-2014 school year (182 days), ESY
2014 (20 days), 2014-2015 school year (182 days), and ESY 2015 (20 days).
With 6.5 hours in each school day during the school year and 4 hours per
day for the extended school year, this totals 3,314.5 hours of compensatory
education. At the rate of $80 per hour, Defendant is to place $265,160 into a
trust for G.M.’s reasonable educational, rehabilitative, therapeutic or
recreational program provider at Plaintiffs’ election.
Case 1:16-cv-03672-JHR-AMD Document 35 Filed 06/12/17 Page 22 of 22 PageID: 2319
Finally, it is clear that Plaintiffs are prevailing parties under the IDEA,
20 U.S.C. § 1415, at both the administrative level and before this Court and
are entitled to reasonable counsel fees and costs under the IDEA and Section
504 of the Rehabilitation Act. Counsel should file an appropriate fee and
cost application for the Court’s consideration.
For these reasons, as well as those placed on the record during oral
argument, the Defendant’s motion for summary judgment and to
supplement the record is denied. Plaintiffs’ motion for summary judgment is
granted in part in that the Court will order the Defendant to pay an
appropriate amount for each hour of compensatory education placed into a
trust for Parents to use for G.M.’s reasonable educational, rehabilitative,
therapeutic or recreational program provider at Plaintiffs’ own election for
the school years 2012-13, commencing January 7, 2013; 2013-14, and 201415, during which the Defendant failed to provide FAPE, including ESY.
Plaintiffs are prevailing parties. Plaintiffs’ motion is denied insofar as it
sought to expand the award of compensatory education. An Order will be
Dated: June 12, 2017
/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
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