H.L. et al v. MARLBORO TOWNSHIP BOARD OF EDUCATION

Filing 18

OPINION filed. Signed by Judge Freda L. Wolfson on 11/14/2017. (mmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
H.L. and J.L. o/b/o V.L.,
:
:
Plaintiffs,
:
Civil Action No. 16-9324 (FLW) (DEA)
:
v.
:
:
OPINION
:
MARLBORO TOWNSHIP BOARD
:
OF EDUCATION,
:
:
Defendant.
:
___________________________________ :
WOLFSON, United States District Judge:
Presently before the Court are Cross-Motions for Summary Judgment filed by Plaintiffs
H.L. and J.L. (collectively, “Plaintiffs” or the “Parents”), on behalf of their minor daughter, V.L.,
a child classified as eligible for special education services under the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and by Defendant Marlboro Township Board
of Education (“Defendant” or the “District”). The instant Motions arise out of Plaintiffs’ appeal
of a summary decision by Administrative Law Judge Thomas Betancourt (the “ALJ”), finding
that Defendant was not required to reimburse Plaintiffs for the costs of V.L.’s placement in
private school, because Plaintiffs failed to timely notify Defendant of their intent to unilaterally
place V.L. in private school at public expense, as required under IDEA and the corresponding
New Jersey regulations. This Court has jurisdiction pursuant to 20 U.S.C. § 1415(i)(2)(A).1 For

1

20 U.S.C. § 1415(i)(2)(A) provides, in pertinent part, that:
Any party aggrieved by the findings and decision made under subsection (f) or (k) who
does not have the right to an appeal under subsection (g), and any party aggrieved by the
findings and decision made under this subsection, shall have the right to bring a civil
1

the reasons that follow, the Court: (1) affirms the ALJ’s finding that Plaintiffs’ notice was
untimely under IDEA; and (2) remands this matter for further consideration of, inter alia,
whether Plaintiffs are entitled to any reimbursement for V.L.’s private placement, and whether
V.L. was denied a compensatory education.
I.

BACKGROUND
Plaintiffs are the parents of V.L., a learning-disabled girl who attended public school

within the Marlboro Township Public School District from first through seventh grade. This
case arises out of a due process petition filed by Plaintiffs, seeking tuition reimbursement from
Defendant, pursuant to IDEA, for their unilateral placement of V.L. in private school for the
2015-2016 academic year, as well as a compensatory education for V.L. for the period of time
during which Defendant allegedly denied V.L. a free appropriate public education (“FAPE”).
Before recounting the relevant factual and procedural background of this case, I will briefly
review the statutory framework in which Plaintiffs’ claims arose.
A.

The Individuals with Disabilities Education Act

The IDEA requires “states that receive federal education funding to ensure that disabled
children receive a ‘free appropriate public education’ (FAPE).” Munir v. Pottsville Area Sch.
Dist., 723 F.3d 423, 425–26 (3d Cir. 2013) (quoting 20 U.S.C. § 1412(a)(1)); see H.E. v. Walter
D. Palmer Leadership Learning Partners Charter Sch., 873 F.3d 406, 408 (3d Cir. 2017). The
IDEA “protects the rights of disabled children by mandating that public educational institutions
identify and effectively educate those children, or pay for their education elsewhere if they

action with respect to the complaint presented pursuant to this section, which action may
be brought in any State court of competent jurisdiction or in a district court of the United
States, without regard to the amount in controversy.
20 U.S.C.A. § 1415(i)(2)(A).
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require specialized services that the public institution cannot provide.” D.K. v. Abington Sch.
Dist., 696 F.3d 233, 244 (3d Cir. 2012) (citation omitted).
To comply with the IDEA, “school districts must identify and evaluate all children who
they have reason to believe are disabled under the statute.” Munir, 723 F.3d at 426. To provide
a FAPE, the school district must develop and administer an Individualized Education Program
(“IEP”) for each student that is classified as eligible for special education. S.H. v. State–
Operated Sch. Dist. of Newark, 336 F.3d 260, 264 (3d Cir. 2003); see C.H. v. Cape Henlopen
Sch. Dist., 606 F.3d 59, 65 (3d Cir. 2010) (“The FAPE required by the Act is tailored to the
unique needs of the child by means of an [IEP].”). “An appropriate IEP must contain statements
concerning a disabled child's level of functioning, set forth measurable annual achievement
goals, describe the services to be provided, and establish objective criteria for evaluating the
child's progress.” Cape Henlopen, 606 F.3d at 65. While the school district is “not required to
‘maximize the potential’” of each disabled student, T.R. v. Kingwood Twp. Bd. of Educ., 205
F.3d 572, 577 (3d Cir. 2000) (quoting Bd. of Educ. Of Hendrick Hudson Cent. Sch. Dist. v.
Rowley, 458 U.S. 176, 197 n. 21 (1982)), it “must offer an IEP that is ‘reasonably calculated to
enable the child to receive meaningful educational benefits in light of the student's intellectual
potential.’” Munir, 723 F.3d at 426 (quoting P.P. ex rel. Michael P. v. W. Chester Area Sch.
Dist., 585 F.3d 727, 730 (3d Cir. 2009)). “Consistent with its obligation under IDEA, New
Jersey has enacted statutes and regulations which require all local Boards of Education in the
State to identify children between the ages of five and twenty-one who may need or benefit from
special education.” L.P. v. Edison Bd. of Educ., 265 N.J. Super. 266, 273 (Law. Div. 1993)
(citing N.J.S.A. 18A:46–6).

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“The IDEA establishes a private cause of action against a school district that fails to
abide by its legal obligations.” Cape Henlopen, 606 F.3d at 66. In that regard, a “parent who
believes that a school has failed to provide a FAPE may request [an administrative] hearing,
commonly known as a due process hearing, to seek relief from the school district for its failure to
provide a FAPE,” and may appeal an adverse decision to federal district court.2 Mary T. v. Sch.
Dist. of Philadelphia, 575 F.3d 235, 240 (3d Cir. 2009); see Cape Henlopen, 606 F.3d at 66
(“The parent or guardian of a minor student who is denied the rights and procedures set forth in
the IDEA is afforded the opportunity to file an administrative complaint and to appeal an adverse
determination to a federal district court.”). In New Jersey, this process entails filing a complaint
and request for a due process hearing with the New Jersey Department of Education (“NJDOE”).
See N.J.A.C. 6A: 14–2.7(c); Edison Bd. of Educ., 265 N.J. Super. at 273-74 (“[The] DOE has
been established as the forum agency for handling ‘due process’ petitions to review local agency
decisions and actions regarding the provision of an FAPE for handicapped children.”). In special
education cases, the due process hearing is conducted by an Administrative Law Judge in New
Jersey’s Office of Administrative Law (“OAL”). Edison Bd. of Educ., 265 N.J. Super. at 274.
The ALJ's decision on “the appropriateness of the IEP is final and binding on the parties and
must be implemented without undue delay.” Id.; see N.J.A.C. 6A: 14–2.7(g).
Aggrieved parties may appeal the ALJ’s final decision by filing a civil action in state or
federal court. 20 U.S.C. § 1415(i)(2). “After examining the administrative record and hearing
additional evidence at the request of either party, the reviewing court is authorized to grant ‘such

2

Specifically, as detailed further below, a parent who believes that a school district is not
providing his or her child a FAPE may unilaterally remove the child from public school, enroll
the child in private school, and then file a due process petition seeking reimbursement for the
cost of the child’s placement in the alternative school. See 20 U.S.C. § 1412(a)(10)(C); Munir,
723 F.3d at 426.
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relief as [it] determines is appropriate’ based on the preponderance of the evidence.” Batchelor
v. Rose Tree Media Sch. Dist., 759 F.3d 266, 272 (3d Cir. 2014) (quoting 20 U.S.C. §
1415(i)(2)(C)). “These remedies include, inter alia, ‘attorneys' fees, reimbursement for a private
educational placement, and compensatory education.’” Id. (quoting Chambers v. Sch. Dist. of
Phila. Bd. of Educ., 587 F.3d 176, 185 (3d Cir. 2009). Against this legal background, I turn to
the facts of this case.
B.

Factual Background3

V.L. is a fifteen-year-old girl who resides with her parents, H.L. and J.L., in Marlboro
Township, New Jersey. See H.L. and J.L. o/b/o Marlboro Township Board of Educ., OAL No.
8677-16, Final Decision (Nov. 28, 2016) (“ALJ Op.”), 2. V.L. has been diagnosed with certain
learning disabilities, and, as a result of those disabilities, V.L. was classified as eligible for
special education and related services through the IDEA, under the category of Specific Learning
Disability. See id.
From first through seventh grade, V.L. attended public school within the Marlboro
Township Public School District. Id. On January 9, 2015, while V.L. was in seventh grade, her
Parents sent a letter to the District expressing their dissatisfaction with V.L.’s progress in
reading, writing, and mathematics, and requesting an Independent Evaluation of V.L. in the
psychological, educational, speech, and language areas. Certification of Jennifer Casazza
(“Casazza Cert.”), Ex. D. The Parents further requested Assistive Technology and Central

The following facts are drawn from the ALJ’s decision and other documentary evidence
presented in this case. As detailed below, because the ALJ reached his decision solely on the
ground that Plaintiffs failed to timely provide notice of their intent to enroll V.L. in private
school, without considering the threshold issues of whether Defendant denied V.L. a FAPE and
whether V.L.’s private placement was appropriate, the Court will focus on the facts surrounding
the notice issue.
3

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Auditory Processing Evaluations. Id. The District completed Assistive Technology,
Independent Language and Literacy, and Audiological Evaluations in March of 2015. Id., Ex. C.
On June 18, 2015, the District held an IEP meeting (the “IEP Meeting”) concerning V.L.,
wherein the District proposed an IEP for the upcoming 2015-2016 academic year. ALJ Op., 3;
Casazza Cert., Ex. C. The Parents attended the IEP Meeting, and expressed concerns about
V.L.’s academic progress and study habits, including their belief that V.L. had made limited
progress in the District’s resource center program, about the adequacy of V.L.’s preparation for
Spanish quizzes and testing, and regarding the fact that V.L. had missed social studies in the
seventh grade. ALJ Op., 3; Casazza Cert., Ex. C. While the IEP proposed placing V.L. within
the resource center program for reading and mathematics, the Parents explained their preference
for V.L. to remain in the general education setting with supportive services, and requested, inter
alia, individualized special reading instruction, guided reading opportunities in the general
education setting, and various assistive technology resources. ALJ Op., 3; Casazza Cert., Ex. C.
The District provided a written copy of the proposed IEP to the Parents on June 24, 2015, which
documented the concerns and requests outlined by the Parents during the IEP Meeting. ALJ Op.,
3; Casazza Cert., Ex. C.
On June 25, 2015, the Parents sent the District a letter (the “Intake Request Letter”)
indicating their ongoing concerns regarding V.L’s academic progress in reading, writing, and
mathematics. ALJ Op., 3; Casazza Cert., Ex. E. Specifically, the Intake Request Letter noted
that while the Parents had expressed concerns regarding V.L.’s academic progress at the IEP
meeting, the June 24, 2015 IEP proposed “the same program as last year.” Casazza Cert., Ex. E.
The letter further explained the Parents’ belief that the level of instruction needed to
accommodate V.L. could not be provided through the District’s resource center program or

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through in-class support, and that “a more intensive, specialized program [was] needed for
[V.L.].” Id. Importantly, the Intake Request Letter requested that, “[i]n view of V.L’s
significant challenges and lack of meaningful progress,” the District send V.L.’s records to the
Lewis School in Princeton, New Jersey “for an in-take.” Id. The letter further indicated that the
“Lewis School specializes in instruction for students with language-based learning issues which
is more suited to meet V.L.’s needs.” Id.4
On July 2, 2015, the District sent a letter response (the “Response”) to the Parents’ Intake
Request Letter. See ALJ Op. 3; Casazza Cert., Ex. F. The Response set forth the District’s
position that V.L. had shown academic progress in all areas over the previous year, as well as its
belief that V.L.’s continued participation in the District’s programs, along with the
implementation of several recommendations stemming from her Independent Evaluations, would
foster her development. Casazza Cert., Ex. F. Consequently, the Response stated that the
District “declines to send records to the [Lewis School] or any other out of district placement,”
but indicated that the District would supply records to the Parents directly upon request. Id.
On July 9, 2015, the Parents signed a contract (the “Lewis Contract”) enrolling V.L. in
the Lewis School for the 2015-2016 academic year. ALJ Op., 3; Casazza Cert., Ex. G. Under
the Lewis Contract, the Parents agreed to pay the full cost of tuition for the 2015-2016 academic
year, in the amount of $36,000.00, over two installments, with 50% due by July 15, 2015, and
the remaining 50% due by July 30, 2015. Casazza Cert., Ex. G. On July 12, 2015, the Parents
sent a letter to the District, through their counsel, requesting V.L.’s records, including all testing,

4

Nonetheless, the Parents did not formally reject the IEP for the 2015-2016 year, and the Intake
Request Letter did not indicate specifically that the Parents intended to make a unilateral
placement of V.L. at the Lewis School and seek reimbursement from the District. See ALJ Op.,
3.
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transcripts, report cards, and IEP reports. ALJ Op., 3; Casazza Cert., Ex. H. On August 12,
2015, the Parents sent another letter to the District, again requesting V.L.’s records. ALJ Op., 3;
Casazza Cert., Ex. I. The August 12, 2015 correspondence also stated that it “shall again
confirm that the parents are seeking, in part, reimbursement and/or placement at the Lewis
School . . . .” Id.
C.

Procedural History

On April 12, 2016, Plaintiffs filed a request for a due process hearing (the “Due Process
Petition” or “Petition”) with the NJDOE, alleging that V.L. was denied a FAPE, as guaranteed
under the IDEA. Pls.’ Opp. to Def.’s Mot. for Summ. J., Ex. E. The Petition sought, inter alia,
reimbursement for the unilateral placement of V.L. in the Lewis School, and a compensatory
education for the period of time that V.L. was allegedly denied a FAPE. Id. On April 14, 2016,
Defendant filed a notice challenging the sufficiency of the Due Process Petition. Id., Ex. F. The
NJDOE subsequently transferred the case to the OAL. Id. On April 19, 2016, Administrative
Law Judge Joann LaSala Candido issued a decision concluding that the Petition was sufficient.
Id., Ex. F.
On October 19, 2016, Defendant moved for summary decision of the Petition. Plaintiffs
filed their opposition on November 3, 2016, and Defendant filed its reply on November 14,
2016. In a decision dated November 28, 2016, Administrative Law Judge Thomas Betancourt
dismissed the Petition, with prejudice, on the ground that Plaintiffs failed to timely notify
Defendant of their intent to remove V.L. from public school and place her in the Lewis School at

8

public expense, as required under 20 U.S.C.A. § 1412(a)(10)(C)(iii) and N.J.A.C. 6A:142.10(c)(2).5 See ALJ Op., 7-8.
On December 16, 2016, Plaintiffs filed the instant appeal, asking this Court to perform an
independent review of the record and to reverse the ALJ’s decision, pursuant to 20 U.S.C.A. §
1415(i)(2)(A). ECF No. 1. On January 17, 2017, Defendant filed its Answer and asserted
affirmative defenses. ECF No. 7. Thereafter, the parties filed Cross-Motions for Summary
Judgment. ECF Nos. 12, 16.
II.

STANDARD OF REVIEW
The standard of review “under which this Court considers an appeal of a state

administrative decision under the IDEA differs from that governing the typical review of
summary judgment.” M.A. ex rel. G.A. v. Voorhees Twp. Bd. of Educ., 202 F. Supp. 2d 345, 359
(D.N.J. 2002), aff'd, 65 F. App'x 404 (3d Cir. 2003). To that end, the Third Circuit has instructed
district courts to apply a “modified version of de novo review” to cases brought under IDEA.
Munir, 723 F.3d at 430. Under this standard, although “the District Court must make its own
findings by a preponderance of the evidence, the District Court must also afford ‘due weight’ to
the ALJ's determination.” Mary T, 575 F.3d at 241 (citation omitted). “The ‘due weight’
standard requires the court to consider the factual findings from the administrative proceedings
prima facie correct and, if the court fails to adopt those findings, it must explain its reasons for
departing from them.” Id. (quoting Shore Reg'l High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381
F.3d 194, 199 (3d Cir. 2004)). The purpose of the “due weight” standard is to prevent the courts
from imposing their own “view of preferable educational methods on the states.” Rowley, 458

In dismissing the Petition, the ALJ did not render a finding on Plaintiffs’ claim for a
compensatory education.
5

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U.S. at 207. Nonetheless, the Court's review over questions of law and the ALJ's application of
legal precepts is plenary. See Carlisle Area Sch. v. Scott P. By & Through Bess P., 62 F.3d 520,
528 n. 3 (3d Cir. 1995); D.B. v. Ocean Twp. Bd. of Educ., 985 F. Supp. 457, 500 (D.N.J. 1997),
aff'd, 159 F.3d 1350 (3d Cir. 1998).
III.

DISCUSSION
The instant appeal requires this Court to review the ALJ’s decision that Plaintiffs are not

entitled to tuition reimbursement for their unilateral placement of V.L. in the Lewis School.
Specifically, Plaintiffs seek reversal of the ALJ’s finding that Plaintiffs failed to timely notify
Defendant of their intent to unilaterally place V.L. in the Lewis School, arguing that issues of
fact exist as to when Plaintiffs notified Defendant of the intended placement. Plaintiffs further
argue that, even if they failed to timely notify Defendant of their intentions, the ALJ erred in
treating that failure as a per se bar to reimbursement, rather than a discretionary factor for
reducing or denying reimbursement. Plaintiffs also cross-move for a declaration that V.L. was
denied a FAPE and that V.L.’s placement was appropriate under IDEA, issues that were not
resolved by the ALJ. In opposition, Defendant argues that the ALJ correctly determined that
Plaintiffs failed to timely notify the District of their intent to unilaterally place V.L. in the Lewis
School, and that Plaintiffs’ failure was a proper basis for the denial of tuition reimbursement in
toto. Defendant also contends that issues of fact exist as to whether the District provided V.L.
with a FAPE, and whether V.L.’s placement at the Lewis School was appropriate.
A.

Reimbursement Under the IDEA

As discussed above, the IDEA “requires States receiving federal funding to make a ‘free
appropriate public education’ (FAPE) available to all children with disabilities residing in the
State.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 232 (2009); 20 U.S.C. § 1412(a). “Parents

10

who believe that a public school is not providing a FAPE may unilaterally remove their disabled
child from that school, place him or her in another school, and seek tuition reimbursement for the
cost of the alternate placement.” Mary T., 575 F.3d at 242 (citing 20 U.S.C. § 1412(a)(10)(C)).
Nonetheless, “[t]he IDEA was not intended to fund private school tuition for the children of
parents who have not first given the public school a good faith opportunity to meet its
obligations.” Cape Henlopen, 606 F.3d at 72. Rather, “[t]he core of the statute . . . is the
cooperative process that it establishes between parents and schools.” Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 53 (2005). Thus, “parents who unilaterally change their child's placement
during the pendency of review proceedings, without the consent of state or local school officials,
do so at their own financial risk.” Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of
Mass., 471 U.S. 359, 373–74 (1985).
The IDEA “authorizes reimbursement for the cost of private special-education services
when a school district fails to provide a FAPE and the private-school placement is appropriate.”
Forest Grove, 557 U.S. at 247. However, even where a district fails to provide a FAPE and the
private school placement is deemed appropriate, the reviewing judge “retain[s] discretion to
reduce the amount of a reimbursement award if the equities so warrant . . . .” Id.; see Cape
Henlopen, 606 F.3d at 71. Indeed, the IDEA provides that the cost or reimbursement “may be
reduced or denied” in the following circumstances:
(I) if-(aa) at the most recent IEP meeting that the parents attended prior to removal of
the child from the public school, the parents did not inform the IEP Team that
they were rejecting the placement proposed by the public agency to provide a free
appropriate public education to their child, including stating their concerns and
their intent to enroll their child in a private school at public expense; or

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(bb) 10 business days (including any holidays that occur on a business day) prior
to the removal of the child from the public school, the parents did not give written
notice to the public agency of the information described in item (aa);
(II) if, prior to the parents' removal of the child from the public school, the public agency
informed the parents, through the notice requirements described in section 1415(b)(3) of
this title, of its intent to evaluate the child (including a statement of the purpose of the
evaluation that was appropriate and reasonable), but the parents did not make the child
available for such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions taken by the
parents.
20 U.S.C.A. § 1412(a)(10)(C)(iii) (emphasis added).6 Similarly, N.J.A.C. § 6A:14-2.10(c)
provides that the cost of tuition reimbursement “may be reduced or denied” if, inter alia, “[a]t
least 10 business days . . . prior to the removal of the student from the public school, the parents
did not give written notice to the district board of education of their concerns or intent to enroll
their child in a nonpublic school.” N.J.A.C. § 6A:14-2.10(c) (emphasis added).
In the instant case, the ALJ granted Defendant’s motion for summary decision and denied
Plaintiffs’ claims for reimbursement, finding that reimbursement was not warranted in light of
Plaintiffs’ failure to adhere to the ten-day notice requirement set forth in IDEA and the
corresponding state regulations. ALJ Op., 7. In so finding, the ALJ did not reach the threshold
determinations of whether Defendant denied V.L. a FAPE, or whether V.L.’s placement in the

6

The IDEA also provides an exception to the notice provision, precluding the reduction or denial
of the cost of reimbursement for failure to provide notice if either: (i) the child’s parents are
“illiterate or cannot write in English”; or (ii) compliance with the notice provision “would likely
result in serious emotional harm to the child.” 20 U.S.C. § 1412(a)(10)(C)(iv). However,
because Plaintiffs have not argued that an exception to the notice requirement is triggered in this
case, the Court will not reach that issue for the purposes of the present appeal. Indeed, because
Plaintiffs failed to raise the notice exception before the ALJ, on appeal, the Court would be
precluded from considering any such argument. See Woods on Behalf of T.W. v. New Jersey
Dep't of Educ., 796 F. Supp. 767, 775 (D.N.J. 1992) (“[P]ursuant to the IDEA, failure to raise an
issue at the administrative level will result in a waiver of the issue on appeal to a United States
District Court.”).
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Lewis School was appropriate. With respect to the notice issue, the ALJ found that although
Plaintiffs “signed a contract enrolling V.L. in the Lewis School on July 9, 2015,” Plaintiffs “did
not notify [Defendant] that they intended to make a unilateral placement in the Lewis School . . .
until August 12, 2015.” ALJ Op., 3. Accordingly, the ALJ found that Plaintiffs failed to adhere
to IDEA’s ten-day notice requirement, and dismissed Plaintiffs’ claim for tuition reimbursement.
In so holding, however, the ALJ did not explain his reasoning for finding that Plaintiffs’
failure to comply with the notice requirement warranted a wholesale denial of the cost of tuition
reimbursement, rather than a reduction in tuition reimbursement. The ALJ’s analysis was
limited to the following:
In the instant case [Plaintiffs] do not rebut [Defendant’s] assertion that they failed to
provide adequate notice. Rather, their joint certification in opposition to the motion for
summary decision merely states that they voiced significant concerns about V.L.’s
education. While [Plaintiffs’] counsel asserts that there is a factual dispute regarding
notice, it is merely argument. The evidence, including [Plaintiffs’] joint certification,
demonstrates that notice was not timely provided.
I conclude that [Defendant] is entitled to summary decision because [Plaintiffs] acted
unreasonably, and made a unilateral placement without giving proper notice.
ALJ Op., 7-8.
On appeal, Plaintiffs argue that: (i) the ALJ’s finding that Plaintiffs failed to adhere to
IDEA’s notice requirement was improper, because factual disputes exist regarding when
Plaintiffs provided notice of their intent to enroll V.L. in the Lewis School; and (ii) even if they
failed to adhere to IDEA’s notice requirement, the equities of this case do not warrant the
wholesale denial of reimbursement.
I turn first to the issue of whether Plaintiffs provided Defendant with adequate notice of
their intent to enroll V.L. in the Lewis School at public expense. Under IDEA and the
corresponding New Jersey regulation, the cost of reimbursement may be reduced or denied if,

13

“10 business days . . . prior to the removal of the child from the public school, the parents did not
give written notice to the” district of their concerns and their “intent to enroll their child in a
private school at public expense.” 20 U.S.C.A. § 1412(a)(10)(C)(iii)(I); N.J.A.C. 6A:142.10(c)(2). The notice requirement exists “to give the school district an opportunity, ‘before the
child is removed, to assemble a team, evaluate the child, devise an appropriate IEP, and
demonstrate whether or not a FAPE can be provided in the public schools.’” T.H. ex rel. A.H. v.
Clinton Twp. Bd. of Educ., No. 05-3709, 2006 WL 1128713, at *6 (D.N.J. Apr. 25, 2006)
(quoting Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)).
Here, Plaintiffs did not follow the notice requirements under IDEA and the corresponding
New Jersey regulation. While Plaintiffs sent correspondence to Defendant on June 25, 2015,
expressing their dissatisfaction with V.L.’s academic progress and requesting that Defendant
send V.L.’s records to the Lewis School for an intake, the ALJ properly determined that the
Intake Request Letter did not constitute sufficient notice under IDEA. In that regard, the statute
requires parents to give written notice of their “intent to enroll their child in a private school at
public expense.” 20 U.S.C.A. § 1412(a)(10)(C)(iii)(I). Even assuming that the Intake Request
Letter was sufficient to put Defendant on notice of Plaintiffs’ intent to enroll V.L. in the Lewis
School, importantly, the Letter lacked any indicia that Plaintiffs intended to seek reimbursement
from Defendant for V.L.’s private placement. Accordingly, the Intake Request Letter was
insufficient to provide the notice required under IDEA and New Jersey law.
Moreover, Plaintiffs’ August 12, 2015 letter informing Defendant that they intended to
seek reimbursement for V.L.’s placement at the Lewis School was clearly untimely under the
statute. As the record shows, Plaintiffs signed a contract to enroll V.L. in the Lewis School on

14

July 9, 2015,7 over a month prior to their notice. ALJ Op., 3; Casazza Cert., Ex. G. The Lewis
Contract provided that the “parents . . . agree to pay the full-year tuition as stated below,” and
further stated that 50% of the tuition was due by July 15, 2015, with the other 50% due by July
30, 2015. Casazza Cert., Ex. G. Thus, by the time Plaintiffs notified Defendant of their intent to
place V.L. at the Lewis School at Defendant’s cost, Plaintiffs had already enrolled V.L. in the
Lewis School and had already paid the full cost of tuition. Accordingly, I affirm the ALJ’s
finding that Plaintiffs failed to timely provide adequate notice under 20 U.S.C.A. §
1412(a)(10)(C)(iii) and N.J.A.C. 6A:14-2.10(c).
Nonetheless, Plaintiffs maintain that even if the ALJ was correct in finding that Plaintiffs
failed to timely notify Defendant, the ALJ erred in treating Plaintiffs’ failure to comply with the
notice requirement as a complete bar to their claim for reimbursement. The Court agrees.
It is well-settled that, even when a school district fails to provide a FAPE and the
placement of a child in a private school is appropriate, the reviewing judge retains “discretion to

7

While Plaintiffs argue that the June 25, 2015 Intake Request Letter was sufficient to confer
notice under IDEA, and thus, that they timely provided notice thereunder, Plaintiffs do not
dispute that V.L. was “removed” from the District on July 9, 2015, the date that Plaintiffs signed
the contract to enroll V.L. in the Lewis School. As such, July 9, 2015 is the operative date from
which the Court will analyze whether Plaintiffs timely notified Defendant of their intent to enroll
V.L. at the Lewis School. However, I note that in Sarah M. v. Weast, 111 F. Supp. 2d 695 (D.
Md. 2000), the United States District Court for the District of Maryland held that “‘removal’ in
the federal statute pertaining to prior notice requirements refers to the actual physical removal of
the child from public school,” and therefore, that where “the decision to enroll in private school
occurs during a summer recess, the ten business days mark from the beginning of the public
school year (or sooner if the child is physically placed in private school).” Id. at 701.
Nonetheless, the Weast standard has not been adopted by the Third Circuit. See W.D. v.
Watchung Hills Reg'l High Sch. Bd. of Educ., 602 F. App'x 563, 568 (3d Cir. 2015) (explaining
the Weast court’s definition of “removal,” but declining to adopt that definition). Indeed,
Plaintiffs have not even cited to Weast in the present appeal. In any event, because Plaintiffs did
not argue that the Weast standard governs this case before the ALJ, any argument that the Weast
standard for removal should be considered is forfeited on appeal. Woods on Behalf of T.W., 796
F. Supp. at 775.
15

reduce the amount of a reimbursement award if the equities so warrant,” including for failure to
“give the school district adequate notice of their intent to enroll the child in private school” under
20 U.S.C.A. § 1412(a)(10)(C)(iii) and N.J.A.C. 6A:14-2.10(c). Forest Grove, 557 U.S. at 247
(2009) (emphasis added); Cape Henlopen, 606 F.3d at 71. The discretionary nature of the notice
provision is reflected in the plain language of the statute, which provides that the cost of
reimbursement “may be reduced or denied” for lack of adequate notice, rather than must be
denied. 20 U.S.C.A. § 1412(a)(10)(C)(iii) (emphasis added); N.J.A.C. 6A:14-2.10(c). Indeed,
several courts have exercised their equitable discretion to permit parents to recover the full or
partial cost of reimbursement, despite the parents’ failure to provide timely notice as required
under IDEA and the corresponding New Jersey regulation. See, e.g., F.D. v. Holland Twp. Bd. of
Educ., No. 05-5237, 2007 WL 2021782, at *10 (D.N.J. July 9, 2007) (permitting parents to
recover tuition reimbursement, despite their failure to comply with the notice provision in
N.J.A.C. 6A:14-2.10(c)); W.M. v. Lakeland Cent. Sch. Dist., 783 F. Supp. 2d 497, 505 (S.D.N.Y.
2011) (finding that, despite the parents’ failure to provide the school with timely notice of their
intent to remove their child from public school, “the equities favor[ed] providing partial
reimbursement to the [parents].”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635,
676 (S.D.N.Y. 2011) (finding that, despite the parents’ failure to comply with IDEA’s notice
provision, “in the exercise of its discretion, and taking into consideration the record as well as the
findings of the [administrative tribunal], . . . equitable considerations justif[ied] reducing the
Parents' tuition reimbursement request by 75%.”).
In this case, the ALJ failed to delineate his reasoning for finding that Plaintiffs’ failure to
provide timely notice of V.L.’s removal warranted the complete denial of Plaintiffs’
reimbursement claim. Rather, it appears that the ALJ treated Plaintiffs’ failure to adhere to the

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notice requirement as a categorical bar to Plaintiffs’ reimbursement claim. To that end, after
finding that Plaintiffs failed to provide timely notice, the ALJ granted Defendant’s motion for
summary decision, without explaining why the equities warranted the total denial of Plaintiffs’
reimbursement claim, as opposed to a mere reduction in the cost of reimbursement. For
example, the ALJ did not explain the extent to which Defendant was prejudiced by receiving late
notice of Plaintiffs’ decision. See Upper Freehold Reg'l Bd. of Educ. v. T.W., 496 F. App'x 238,
244 (3d Cir. 2012) (“[O]n remand, after the District Court determines whether T.W.'s parents are
eligible for tuition reimbursement, it may examine to what extent any reimbursement award may
be equitably reduced based on § 1412(a)(10)(C)(iii)(I). If the District Court reaches this issue on
remand, it should consider the equities, including . . . the extent to which the District was
prejudiced by receiving late notice of the parents' decision.”).8 Additionally, while the ALJ
stated generally in his conclusion that Plaintiffs “acted unreasonably,” ALJ Op., 8, he provided
no explanation, and pointed to nothing in the record that supported that finding. Moreover,
because the ALJ did not conduct a hearing or otherwise consider live testimony from the parties,
it is clear that his unreasonableness finding was not based upon credibility determinations.

This Court’s finding that remand to the ALJ for further consideration of the issue of whether an
equitable reduction in tuition reimbursement is warranted finds support in Upper Freehold. In
Upper Freehold, upon remanding the case to the district court for further consideration of
whether the parents’ untimely notice warranted an equitable reduction in tuition reimbursement,
the Third Circuit explained that the district court “may, of course, take additional evidence on
this issue or remand the case to the ALJ for further fact-finding.” Upper Freehold, 496 F. App'x
at 244 (emphasis added). Here, the paucity of the factual record warrants remand to the ALJ,
who, as part of an agency with specialized subject matter expertise in this area, is best suited to
conduct fact-finding in this case. See R.R. v. Manheim Twp. Sch. Dist., 412 F. App'x 544, 549
(3d Cir. 2011) (“There is a reason for insisting on administrative review and the heightened level
of deference accorded to its results: judicial review is ‘by no means an invitation to the courts to
substitute their own notions of sound educational policy for those of the school authorities which
they review.’”) (quoting Rowley, 458 U.S. at 206).
8

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In short, it is unclear, from the ALJ’s decision, whether the ALJ simply assumed that
Plaintiffs’ failure to provide timely notice to Defendant was a per se bar to tuition
reimbursement. To the extent that the ALJ short-circuited the equitable analysis by concluding
that Plaintiffs’ failure to provide timely notice mandated the denial of Plaintiffs’ claim for
reimbursement, the ALJ ran afoul of the Supreme Court’s instruction that reducing or denying a
claim for reimbursement for lack of notice is a discretionary determination. See Forest Grove,
557 U.S. at 247.9 And, to the extent that the ALJ did in fact find that the equities warrant the
wholesale denial of reimbursement, because the ALJ did not include an equitable analysis, and
did not explain his finding that Plaintiffs acted unreasonably, the Court is unable to review that
determination. Therefore, on remand, the ALJ should further elucidate the reasoning underlying
his equitable analysis.
Accordingly, the Court will remand this case to the ALJ to supplement his decision. On
remand, the ALJ should consider whether, in light of Plaintiffs’ failure to timely notify
Defendant of their intent to enroll V.L. at the Lewis School at public expense, the equities
presented in this case warrant a wholesale denial of Plaintiffs’ claims for reimbursement, as
opposed to a reduction in the cost of reimbursement.10

In observing that it appears that the ALJ erred in treating Plaintiffs’ failure to provide timely
notice as a per se bar to reimbursement, the Court does not comment on whether the facts of this
case warrant the wholesale denial of Plaintiffs’ reimbursement claims, as opposed to a reduction
in tuition reimbursement. Nor does the Court hold that it is improper, in any case, to conclude
that inadequate notice warrants a denial of tuition reimbursement, without first evaluating
whether a school district has denied the child a FAPE, or whether the child’s private placement
was appropriate. Rather, the Court merely finds that untimely notice does not bar a claim for
reimbursement as a matter of law, and that, on remand, the ALJ should supplement his reasoning
as to why the equities support denying or reducing the cost of reimbursement as a result of
Plaintiffs’ untimely notice.
10
The Court declines to reach the issues of whether V.L. was denied a FAPE and whether V.L.’s
placement in the Lewis School was appropriate, because, as a result of the ALJ’s decision to
dismiss the Petition due to Plaintiffs’ untimely notice, the administrative record has not been
9

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B.

Compensatory Education

Next, Plaintiffs argue that, even if the Court affirms the ALJ’s finding that tuition
reimbursement was not warranted, the ALJ erred in failing to determine whether V.L. is entitled
to a compensatory education. “When parents challenge a school's provision of a FAPE to a
child, a reviewing court must (1) consider whether the school district complied with IDEA's
procedural requirements and (2) determine whether the educational program was ‘reasonably
calculated to enable the child to receive educational benefits.’” Mary T., 575 F.3d at 249
(quoting Rowley, 458 U.S. at 206–07). “In the event that a student has been denied a FAPE, a
court may award compensatory education to account for the period the student was deprived of
this right.” Lauren P. ex rel. David & Annmarie P. v. Wissahickon Sch. Dist., 310 F. App'x 552,
554 (3d Cir. 2009). A compensatory education is a judicially created remedy that is designed
“‘to place disabled children in the same position they would have occupied but for the school
district's violations of IDEA,’ by providing the educational services children should have
received in the first instance.” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 608 (3d
Cir. 2015) (quoting Reid ex rel. Reid v. D.C., 401 F.3d 516, 518 (D.C. Cir. 2005)); see Mary T.,
575 F.3d at 249 (observing that a compensatory education “is designed to require school districts
to belatedly pay expenses that [they] should have paid all along.”) (internal quotations and
citation omitted).
In the case at bar, the ALJ dismissed Plaintiffs’ Petition in its entirety for failure to
comply with IDEA’s notice provision, without rendering a finding on Plaintiffs’ claim for a

fully developed on the FAPE and placement issues. Because a fully developed record on those
issues would inform this Court’s judicial review, the Court refrains from ruling on those issues at
the first instance for the purposes of the present Opinion. On remand, should the ALJ find that
partial or full reimbursement is warranted, the ALJ must, of course, reach the threshold issues of
whether V.L. was denied a FAPE and whether V.L.’s placement was appropriate.
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compensatory education. However, because the notice provision pertains solely to claims for
reimbursement, it is not dispositive of the compensatory education inquiry. See 20 U.S.C. §
1412(a)(10)(C)(iii) (“The cost of reimbursement . . . may be reduced or denied . . . if . . . 10
business days . . . prior to the removal of the child from the public school, the parents did not
give written notice to the public agency of . . . their intent to enroll their child in a private school
at public expense.”) (emphasis added). Accordingly, on remand, in the event that the ALJ finds
that V.L. was denied a FAPE, he should also determine whether V.L. is entitled to a
compensatory education for that period.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED,

insofar as it seeks affirmance of the ALJ’s determination that notice was untimely, and is
DENIED, insofar as it seeks affirmance of the ALJ’s dismissal of Plaintiffs’ Petition. Plaintiffs’
Cross-Motion for Summary Judgment is DENIED. This matter is remanded to the ALJ, who, on
remand, should consider: (1) whether, in light of Plaintiffs’ failure to timely notify Defendant of
their intent to enroll V.L. at the Lewis School at public expense, the equities presented in this
case warrant a wholesale denial of Plaintiffs’ claims for reimbursement, as opposed to a
reduction in the cost of reimbursement; and (2) whether V.L. is entitled to a compensatory
education.

Dated: November 14, 2017

/s/ Freda L. Wolfson
Hon. Freda L. Wolfson
United States District Judge

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