Opinion
Civil No. 01-0784 (JBS).
September 29, 2004
James Schwerin, Esquire, Parker, McCay Criscuolo, P.A., Marlton, NJ, Attorney for Plaintiff Deptford Township School District and Third Party Defendant Raymond Sherman.
Jamie Epstein, Esquire, Collingswood, NJ, Attorney for Defendants and Third Party Complainants H.B., E.B. and P.B.
OPINION
Plaintiff Deptford Township School District brings this action against Defendant H.B., individually and by her parents and legal guardians E.B. and P.B., pursuant to 20 U.S.C. § 1415(I)(2) under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., as an appeal of the final administrative decisions of December 6, 2000, and January 3, 2001, entered by the Honorable John R. Futey, New Jersey Administrative Law Judge. Presently before the Court are cross-motions for summary judgment with respect to the issue of remedy. Although styled as cross-motions for summary judgment, these filings comprised the parties' submissions for the final hearing on the merits of the appropriate remedy, which was convened on March 19, 2004. For the reasons stated below, Plaintiff's motion for summary judgment will be granted in part and Defendants' cross motion will be denied. This Court further orders it appropriate for Defendants to reimburse Plaintiff Deptford in the amount of $52,370.00.
BACKGROUND
The facts of this case are well-known to the parties. The facts pertinent to the motions now before the Court are given here. This case involves Deptford Township School District's ("Deptford" or the "District") Individualized Education Plan ("IEP") for H.B., an autistic child, under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. The IEP in this matter was drafted in April 1999 for the 1999-2000 school year by Janet Ulrich, case manager for the program at Child Development Center ("CDC"), the program in which H.B. was enrolled when she transferred to the district from Voorhees Public Schools on February 22, 1999. The original IEP was submitted to H.B.'s parents and called for H.B. to spend mornings at CDC, and afternoons at the school district's Pine Acres School in the Pre-School Handicapped ("PSH") class. H.B.'s parents, unhappy with the IEP offered by the District, unilaterally enrolled H.B. in the Goddard School, a private school, at the start of the summer of 1999.
During the summer, H.B. spent five days a week at Goddard for 3 hours a day, then received 4 hours of discrete trial therapy ("DTT") at home after school from Partners in Therapy. In Fall of 1999, H.B. continued her attendance at the Goddard School for 12 hours a week, and received 24 hours a week of DTT at home. In concise terms, DTT is a one-on-one method of behavioral therapy in which an instructor provides an antecedent (such as showing an object or giving a direction to the child), awaits the child's response, and then provides a reward if the response is appropriate.
On August 3, 1999, District Special Services Director Raymond Sherman, on behalf of the Deptford Township Child Study Team, requested a Mediation Conference to resolve the educational placement concerns for H.B. The parents of H.B. rejected the mediation and instead filed a petition for due process in October 1999 with Barbara Gantwerk, Director of the New Jersey Office of Special Education ("NJOSE"), which was then transferred to the Office of Administrative Law ("OAL").
The Honorable John R. Futey, Administrative Law Judge ("ALJ"), after holding several days of due process hearings, found on December 6, 2000, that Deptford had failed to provide H.B. with a meaningful education by a preponderance of the credible evidence. (ALJ Decision, 12/6/00, at 34). The ALJ ordered Deptford to create a full day in-district program in a regular education class, incorporating applied behavioral analysis and discrete trial therapy ("DTT") techniques to be coordinated with the Partners in Therapy program. (Id.) Additionally, the ALJ ordered Deptford to pay for reimbursing all costs to date incurred by H.B.'s parents regarding H.B.'s DTT from Partners in Therapy, and any future costs as part of that proceeding. (Id.) Until a program could be created, the ALJ ordered that H.B. was to be permitted to remain at the Goddard School so long as it remained educationally appropriate, and all services since her initial enrollment there in the summer of 1999 to her reintroduction into the Deptford program were to be borne by Deptford. (Id. at 35) In addition, the ALJ ordered Deptford to reimburse H.B.'s parents for all transportation costs incurred during her period at Goddard School. (Id.) The ALJ also ordered Deptford to provide compensatory education in the areas of speech therapy and occupational therapy to H.B. from the point of her enrollment at Goddard School and for all times she was not given such services by the District. Furthermore, the ALJ ordered Deptford to reimburse Dr. Edna Barenbaum for the costs of her independent evaluation of H.B. The ALJ, however, denied the request for a comprehensive evaluation for physical therapy. Finally, the ALJ ordered H.B.'s parents to submit an itemized list of these expenses to Deptford and for Deptford to pay within 30 days of its receipt. (Id.) Thereafter, the ALJ rendered an Order dated January 3, 2001, which required inter alia that Deptford complete a psycho-educational evaluation, a speech and language evaluation, and an occupational evaluation by Dr. Barenbaum and ordered Deptford to pay the costs for transportation and all evaluations required on behalf of H.B., while permitting her to remain at the Goddard School's Chesterbrook educational facility. (ALJ Order, 1/3/01.)
Plaintiff Deptford filed an appeal from the ALJ's decision of January 3, 2001 in this Court on February 15, 2001. Although Deptford's Complaint herein recited that it was an appeal from the January 3, 2001 decision, Deptford failed to seek a stay of the ALJ's January 3 decision pending this appeal until May 29, 2001, and failed to address the underlying ALJ Order of December 6, 2000 at that time. Moreover, Deptford failed at that time to file the administrative record from which it took its appeal. Plaintiff's motion for reasons stated in the Opinion filed herein on September 20, 2001.
On September 27, 2001, Plaintiff amended its complaint to reflect that it appeals from the decision of December 6, 2000. Thereafter, in an Opinion filed November 2, 2001, this Court granted the motion of the State third-party defendants to enforce the ALJ's decision and again denied Deptford's motion for a stay of its obligation to advance the reimbursement to the providers as ordered by the ALJ, largely due to the delay of prior Deptford counsel to seek a state of those obligations in a timely manner. (See Opinion filed November 2, 2001 at 7-15.)
On December 11, 2001, this Court entered an Order which addressed Plaintiff's motion for a stay of enforcement of the ALJ decision pending that appeal. This Court granted the stay with respect to compensatory educational services and other services not actually rendered by providers to H.B., but denied it with respect to reimbursement for services actually rendered by providers to H.B. as ordered by the ALJ on December 6, 2000 and January 3, 2001, as rendered through June 1, 2001. The December 11, 2001 Order also denied Defendants' cross-motion to hold Plaintiff in contempt. Finally, that Order required Plaintiff to immediately pay a sum of $88,090.61 to be used to pay for services already rendered.
In a decision issued on February 15, 2002 on Plaintiff's motion for summary judgment, this Court affirmed the ALJ's Orders in part and reversed them in part, determining that Deptford Township had provided a free, appropriate public education ("FAPE") to H.B., but not in the least restrictive environment ("LRE"). (Opinion, 2/15/02). Deptford then filed a motion for reconsideration on June 11, 2002. In an Opinion dated March 27, 2003, this Court denied Plaintiff's motion for reconsideration, upholding its determination that Deptford had not provided H.B. a FAPE in the least restrictive environment. (Opinion, 3/27/03).
By Order dated January 27, 2004, this Court bifurcated the case, splitting the IDEA appeal from the family's remaining counterclaims pursuant to 42 U.S.C. § 1983, and the remedy issue was set down for a final hearing. Plaintiff filed a motion for partial summary judgment as to the remedy issue on February 6, 2004 and Defendants filed a cross-motion for summary judgment on March 4, 2004. The parties agreed that no further testimony of witnesses was required and that the remedy issue was ripe for final determination. This Court convened the final remedy hearing on March 19, 2004.
On August 13, 2001, H.B. filed an amended counterclaim and third party complaint which included third party claims by H.B.'s sibling, P.B., who was appealing ALJ Fidler's decision of December 12, 2000, in a different administrative case. That third party complaint was brought against Barbara Gantwerk, in her official capacity as Director of the New Jersey Office of Special Education, David Samson, in his official capacity as Attorney General of New Jersey, and Raymond Sherman, in his official capacity as Director of Special Education for Deptford Township School District, alleging that Defendants Gantwerk and Samson failed to ensure the timeliness of the due process petition with the Office of Administrative Law, and failed to enforce or take the necessary legal action against Deptford to compel compliance with the Administrative Law Judge's decision once it was rendered. Causes of action were also alleged against Defendant Sherman. (See Third Party Compl.)
On March 25, 2002, Deptford filed a motion for partial summary judgment as to the claims raised by P.B. in the Third Party Complaint. This Court delivered an oral opinion and Order, dismissing the third party claims and counterclaims brought by P.B. without prejudice to P.B.'s right to file his own complaint in a separate civil action on May 8, 2002.
Subsequently, on March 29, 2002, State Defendants Gantwerk and Samson moved to dismiss the third party complaint. In an Opinion and Order dated May 24, 2002, this Court granted that motion, dismissing with prejudice H.B.'s third party federal claims against these defendants. H.B.'s state law claims were dismissed without prejudice to refiling in a court of competent jurisdiction. (See Opinion, 5/24/02.)
DISCUSSION
Plaintiff's Motion for Partial Summary Judgment as to Remedy
Plaintiff herein seeks reimbursement of monies paid per order of this Court for services E.B. and P.B. obtained for H.B. On December 11, 2001, this Court ordered Deptford to pay a sum of $88,090.61. That sum was calculated as follows:
Dr. Barenbaum Evaluation $2,525.00 Transportation $2,231.00 Goddard School Tuition $4,077.00 Country Acres Nursery $2,490.00 Chesterbrook Academy $2,811.00 Discrete Trial Therapy $73,456.61 Dr. Barenbaum Evaluation $500.00
Of the above monies, Deptford seeks the return of $2,525.00 for Dr. Barenbaum's evaluation, $2,490.00 for the Country Acres Nursery, $2,811.00 for Chesterbrook Academy and $73,456.61 for the cost of providing discrete trial therapy.
Dr. Barenbaum Evaluation
In his December 6, 2000 Order, ALJ Futey ordered Deptford to reimburse Dr. Edna Barenbaum for the costs of her independent evaluation of H.B. (ALJ Decision, 12/6/00, at 35.) The cost of Dr. Barenbaum's evaluation, however, was adjusted to reflect a reasonable amount of compensation and those services were ultimately valued at $500.00. This Court's December 11, 2001 Order required Plaintiff to pay a sum of $88,090.61, which included both the original bill from Dr. Barenbaum for $2,525.00, as well as the reduced bill for $500.00. As that computation resulted in a double billing for the services performed, Deptford is entitled to the return of $2,525.00 from the money previously paid.
Country Acres Nursery and Chesterbrook Academy
Deptford also seeks the return of $2,490.00 for costs associated with the Country Acres Nursery and $2,811.00 for Chesterbrook Academy. As these costs were never ordered by ALJ Futey to be the responsibility of Deptford, the family did not have any reasonable reliance in incurring them with the expectation that they would be reimbursed by Deptford. Thus, Deptford should be returned a total of $5,301.00, which represents the total value of these costs.
Discrete Trial Therapy
The main source of contention between Plaintiff and Defendants over Deptford's request for reimbursement comes with respect to the money spent by H.B.'s parents in providing discrete trial therapy ("DTT"), a sum totaling $73,456.61. Deptford claims that it is not responsible for the charges incurred by H.B.'s parents in providing H.B. with DTT, arguing that because it ultimately prevailed on the merits (i.e. this Court's finding that the District did indeed provide a FAPE), it is entitled to reimbursement. See Doe v. Brookline School Committee, 722 F.2d 910, 921 (1st Cir. 1983) (holding reimbursement available to prevailing parties under the IDEA).
This total represents charges by the Partners in Therapy Group for DTT services provided as follows: $36,629.00 for March 1999-August 2000; $7,915.00 for August 2000-December 5, 2000; and $28,912.61 for December 6, 2000-June 1, 2001. (See Order, 12/11/01.)
In School Committee of the Township of Burlington Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359 (1985), the Supreme Court interpreted that provision of the IDEA which mandates that reviewing courts grant "appropriate" relief to confer broad discretion on those courts, stating that "the only possible interpretation is that the relief is to be `appropriate' in light of the purpose of the Act." Id. at 370. The Burlington Court sustained the power of a district court to order parents reimbursed for private school tuition in situations in which the parents ultimately prevailed on the merits of their challenge to the IEP. There, the Court held that reimbursing parents for expenses incurred in placing their child in private school is "appropriate" relief when a court has found that the public school placement was inappropriate and that the parents' private placement was appropriate. Id.
The Burlington Court warned, however:
[P]arents 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. If the courts ultimately determine that the IEP proposed by the school officials was appropriate, the parents would be barred from obtaining reimbursement for any interim period in which their child's placement violated § 1415(e)(3).Id. at 373-74. In Burlington, the parents rejected the proposed IEP and sought review under § 1415(b)(2) prior to placing their son in an alternative setting for the school year; that is, the review process was already well underway when the parents made the unilateral placement. Indeed, this Court, since the date of its first Opinion herein on September 20, 2001, recognized the prospect that Deptford could recover reimbursement from H.B.'s parents for sums that Deptford had been ordered to pay pending appeal, in the event Deptford prevailed in its appeal. (See Opinion filed September 20, 2001 at 8.)
Here, H.B.'s parents made the unilateral placement at the Goddard School before the review process ever commenced. The record reflects that H.B. began attending Goddard in June of 1999. A due process hearing, however, was not requested by her parents until October 12, 1999. (See Complaint, ¶ 7). Thus, unlike the factual situation in Burlington, this is not a case in which the parents unilaterally changed the placement of their child during the pendency of the review proceedings.
Deptford argues that it is not responsible for the costs incurred for the DTT obtained to supplement what the Goddard School offers. It is Deptford's position that DTT is a methodology, not a placement, and as such, H.B.'s parents are not entitled to reimbursement for those services. Though the Third Circuit has been largely silent on this issue, it is true that other courts have held that "[t]here is no obligation under the IDEA for a school district to provide a specific program or employ a specific methodology in providing for the education of children with disabilities." Straube v. Florida Union Free School District, 801 F. Supp. 1164, 1176 (S.D.N.Y. 1992) (citingLachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 (7th Cir. 1988). See also Erickson v. Albuquerque Public Schools, 199 F.3d 1116, 1120 (10th Cir. 1999). A state is obligated to provide not the "best" available education but only an "appropriate" education. See Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 175 (1982). "An appropriate education is one that should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade." Id. at 204. The IDEA creates a "basic floor of opportunity" which consists of "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child." Id. at 201. It does not guarantee any particular level of education. Moreover, by way of analogy, courts have emphasized that the state need only provide the educational equivalent of a serviceable Chevrolet to every handicapped student; it need not provide a Cadillac for each student's sole use. See, e.g., Doe v. Board of Educ. of Tullahoma City Schools, 9 F.3d 455, 459-60 (6th Cir. 1993).
However, it is clear to this Court that, in and of itself, the Goddard School was not alone sufficient — and would not have been the equivalent of an appropriate IEP under the IDEA that the District would have been responsible for providing — to meet the needs of H.B. To remedy this, H.B.'s parents elected to supplement her experience there with additional DTT and the child's actual placement is best viewed therefore as the Goddard School, as supplemented with DTT. In other words, in this instance, DTT is not so much a methodology as it is part and parcel of the actual placement.
Moreover, H.B.'s parents made a judgment call about the best environment for their child in seeking to meet her educational needs and that decision is to be granted some deference. This deference, however, is not absolute. It is undertaken by the parents, in the words of the Supreme Court, "at their own financial risk." Burlington, supra, at 373-74. Indeed, there is a certain allocation of burdens and assumption of risk that comes into play, preventing parents from obtaining a windfall at the expense of the public fisc based on their unilateral actions. "When parents become convinced that their child is not receiving an appropriate education, the potential for reimbursement from the school system would encourage them to be assiduous in protecting their child's rights, yet the potential of having to repay the school system for a change to a private school would mitigate against impulsive or unfounded actions: a balance is struck." Brookline School Committee, 722 F.2d at 920-21.
In determining what cost Deptford is required to bear for H.B.'s placement, it is therefore instructive for this Court to compare what H.B. would have received had she remained in the District, following the IEP that was outlined to be provided by Deptford as part of her FAPE, with what she did receive in withdrawing to enroll instead at Goddard and supplementing that placement with DTT. As this Court recognized in its February 15, 2002 Opinion, the IEP covering the March 1999 — June 1999 period called for H.B. to continue at the Child Development Center with individualized instruction using discrete trial and applied behavioral analysis and placement in an Autistic Preschool Handicapped Program. H.B.'s program consisted of utilization of picture exchange communication system ("PECS"), DTT, applied behavioral analysis ("ABA"), occupational therapy, incidental learning, whole/part task, reinforcement, prompting strategies, music, adaptive physical education, and speech/language services. Although not specifically mentioned in the IEP, H.B. was also given approximately 30 minutes of DTT per day by her special education teacher, Margaret Daly. (2/15/02 Opinion, pp. 4-5).
The 1999-2000 IEP (the subject of this case), which was prepared in April 1999, built off the prior interim IEP that was in place since H.B. transferred into the district from Voorhees. This IEP called for H.B. to be educated daily at CDC for a half day, then to spend a half day at either of two pre-school classes offered by Deptford at its Pine Acres School. In the morning session, H.B. was to be placed in the transitional primary program, which consisted of children from four and a half to six, where she would have learned school-based skills, speech therapy, and occupational therapy. The Pine Acres School had two preschool programs: one special education class including five children with a teacher, an aide, and a speech/language pathologist; and one regular education preschool program, consisting of about fifteen students, a teacher, an aide, and a speech/language pathologist. In the afternoon at Pine Acres, H.B. was to be mainstreamed into a regular setting by transitioning her with a shadow during the afternoons, among peers with better communication skills. In terms of specific methods of instruction, the IEP called for H.B. to receive six 15-minute sessions of speech and language instruction in an individual small group setting; integrated speech and language instruction daily in the classroom; one 30-minute session of occupational therapy on an individual basis; and one 30-minute session of occupational therapy in a classroom setting. In addition, for the specific objectives listed, educational services to be applied included "1:1 and/or small group interaction," "individual small group," "integrated s/l therapy," and "integrated functional instruction." (2/15/02 Opinion, pp. 8-9).
In its February 15, 2002 Opinion, this Court held that Deptford had, contrary to the holding of the ALJ, provided H.B. with a FAPE, but had nonetheless failed to do so in the least restrictive environment. This Court recognized that while the record demonstrates that the April IEP did not specifically mention DTT as the March 1999 IEP had done, H.B. received DTT instruction at CDC and would have continued receiving DTT instruction at CDC during the 1999-2000 school year. The record further reflects that H.B. was given approximately 30 minutes of DTT per day from February 1999-June 1999 at CDC. Nothing suggests that this amount of DTT would not have continued during the 1999-2000 school year. Though discussions between H.B.'s parents and Margaret Daly, H.B.'s classroom teacher, indicated that Deptford was amenable to an additional 10 hours of DTT instruction that was to supplement the April 1999 IEP, this Court held that it could not find by a preponderance of the evidence that this time would have been conclusively provided in the April IEP. (2/15/02 Opinion, p. 31). There was no agreement by Deptford, furthermore, to provide the 30 hours of home-based DTT instruction that H.B.'s parents were requesting. Thus, it appears that had H.B. remained within the Deptford Township School District during the 1999-2000 academic year, she would have received a total of approximately 30 minutes of DTT per day.
Next, this Court considers what H.B. received both at Goddard and as a supplement thereto. During the summer of 1999, H.B. spent five days a week at Goddard School for 3 hours a day, then received 4 hours of DTT at home after school from Partners in Therapy. In the fall of 1999, H.B. continued her attendance at Goddard School for 12 hours a week, and received 24 hours a week of DTT at home. (2/15/02 Opinion, p. 9 n. 9). Indeed, what H.B.'s parents obtained for her to supplement her attendance at Goddard School was a great deal more than 30 minutes of DTT per day. H.B. was engaged with DTT before the administrative review process commenced. ALJ Futey heard testimony that recounted the increasing number of hours of DTT that H.B.'s parents obtained on her behalf. During the summer of 1999, H.B. started an inclusive education at a summer camp where she got one to one shadowing plus one to one after-school assistance. Beginning in September 1999, H.B. received one to one assistance at Goddard School in a quiet area. Commencing in May 1999, H.B. began to receive instructor intervention of approximately 20 to 25 hours per week, which had increased to 25 to 30 hours at home during the week by the time this matter was before Judge Futey. (ALJ Decision, 12/6/00, at 18). Despite the difference in amount of one type of methodology — namely, DTT — between what H.B. would have received had she remained with Deptford and what she actually received after leaving the district, it cannot be said that the IEP proposed by the District was not a good-faith effort to offer an educational program "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. This basic floor of opportunity is what the IDEA requires.
This Court notes that much of the law that has developed with respect to the IDEA suggests that H.B.'s parents, in choosing to supplement the services their child received — in effect, upgrading the serviceable Chevrolet offered by Deptford to a Cadillac of their liking — should usually bear the additional costs of those services. See e.g., Board of Educ. of Tullahoma City Schools, 9 F.3d at 459-60. See also Grim v. Rhineback Central School Dist., 346 F.3d 377 (2d Cir. 2003);Carlisle Area School v. Scott P. By and Through Bess P., 62 F.3d 520 (3d Cir. 1995). This would be true unless there can be said to be some reasonable reliance by H.B.'s parents on the determination of the Administrative Law Judge with respect to the appropriateness of an educational plan incorporating the amount of DTT requested by those parents.
In this case, Defendants cannot entirely justify their unilateral decision to provide H.B. with the amount of DTT they desired on the decision of the ALJ. The record reflects that H.B.'s parents removed their child from the District in June of 1999, a full year and a half prior to the issuance of the ALJ's written opinion. While it is true that part of the motivation behind H.B.'s parents' decision to remove H.B. from Deptford was their position that the District was not offering their daughter a FAPE, a conclusion which was eventually confirmed by ALJ Futey's determination on this matter (although later reversed by this Court), it cannot be said that they acted in reasonable reliance on that decision. Rather, H.B.'s parents, in unilaterally rejecting the District's IEP, assumed the risk that the final determination might not ultimately support their decision. In this case, that risk was eventually minimized by the final decision of the ALJ, which blessed their actions after the fact. Judge Futey found that "the proposed IEP was immediately flawed in that it failed to adequately articulate any reason to disregard the call and need for discrete trials." (ALJ Decision, 12/6/00, at 29).
Thus, from the time Judge Futey ruled until the time this Court reversed Judge Futey's finding and determined that Deptford had indeed offered H.B. a FAPE, this Court finds that H.B.'s parents reasonably relied upon the conclusions of the ALJ. Although H.B.'s parents had expressed a preference for and desire to employ DTT long before the question came before ALJ Futey, an increase in amount and frequency of use came in response to Judge Futey's opinion. ALJ Futey wrote, "I find that the discrete trials have had a positive impact upon H.B. at a most crucial time in her life and that their continuation is currently mandated in both the school environment as well as the home environment." (Id. at 29). Therefore, this Court finds that portion of the costs incurred by H.B.'s parents in obtaining DTT services for H.B. after the ALJ's December 6, 2000 Opinion are justifiable. Indeed, those post-December 6, 2000 costs can be directly and fairly attributed to Defendants' reliance upon the determination of Judge Futey; they are thus appropriately shouldered by Deptford. See Susquenita School District v. Raelee, 96 F.3d 78, 85 (3d Cir. 1996) (concluding that the policies underlying the IDEA and its administrative process favor imposing financial responsibility upon the school district as soon as there has been an administrative decision establishing the pendent placement).
What cannot be said to be attributable to any arguable reliance that Defendants had on the ALJ's findings, however, is the amount of DTT provided to H.B. prior to December 6, 2000. The costs incurred in providing those services are directly traceable to Defendants' unilateral decision to reject the District's IEP and enroll H.B. in the Goddard School, not a direct result of the due process hearing. Partners in Therapy was contracted by H.B.'s parents to provide DTT services to H.B. in the amount of $36,629.00 from March 20, 1999 until August 2000 and in the amount of $7,915.00 from August 2000 until December 5, 2000, resulting in a grand total of $44,544.00 for pre-December 6, 2000 DTT services. Because these costs were incurred based solely on Defendants' own decision to employ these services (which, in the end, have been held by this Court not to be required by the IDEA) and cannot be attributed to any arguable reliance upon the final decision of the ALJ, Deptford should not be held financially responsible. Thus, this Court finds it proper for Defendants to reimburse Deptford in the amount of $44,544.00 for DTT services.
In its February 15, 2002 Opinion and Order, this Court determined that Deptford Township had provided, through the April 1999 IEP, a FAPE to H.B., despite the fact that it had not done so in the least restrictive environment. (See 2/15/02 Opinion at 48.) In scheduling the remedy hearing, the Court thus focused upon whether the environment for H.B.'s education in her IEP, as offered by Deptford, and which this Court held was not an optimal LRE, was of a nature or degree of undue restrictiveness as to give rise to a remedy such as compensatory time. Since then, Defendants have made no showing that H.B. suffered any harm from Deptford's failure to construct an IEP that offered a FAPE in the least restrictive environment and this Court thus now holds that H.B. suffered no educational harm due to her classroom environment for which an award of damages is appropriate. Indeed, Plaintiff Deptford has demonstrated that the classroom environment in the Pre-School Handicapped Class, to which H.B.'s parents took exception, was not an environment that would have been likely to impair H.B.'s educational development in any way. The parents' concerns that the classmates were substantially impaired were inaccurate, and in fact the fellow pupils themselves had a generally insubstantial degree of impairment, such as speech defects, that were ameliorated by the smaller class size and more intensive interactions.
This Court's finding that Deptford does not bear total responsibility for the costs of providing H.B. with DTT (and therefore that money is owed to the District) is not an award of damages, but rather an appropriate form of reimbursement as courts have come to understand that concept. In Burlington, the Court stated, "Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP." 471 U.S. at 370-71. A damages award on the other hand is recompense for "generalized pain and suffering." W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995). In this instance, H.B.'s parents are called upon to pay the expenses that they should have borne all along, but only to the extent that they incurred such expenses that were both (a) not the District's responsibility as part of a FAPE and (b) not in reliance upon the ALJ's decision. The remedy fashioned by this Court is therefore a reimbursement of actual out-of-pocket expenses incurred before the ALJ's December 6, 2000 ruling, and are the kind of "appropriate" relief contemplated by the IDEA. See e.g., Burlington, 471 U.S. 359 (cost of private education); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993) (cost of private education); Adams v. Oregon, 195 F.3d 1141 (9th Cir. 1999) (cost of private therapy). Moreover, in fashioning this "appropriate" relief, as the IDEA directs courts to do, it is wholly appropriate for a court, as this Court has done here, to consider the relevant equities in exercising its discretion.See Burlington, 471 U.S. at 374 (finding that "equitable considerations are relevant in fashioning relief"); Bucks Co. Dept. of Mental Health/Mental Retardation v. Pennsylvania, 379 F.3d 61 (3d Cir. 2004) (affirming the district court's consideration of equitable factors in fashioning "appropriate" relief under the IDEA); Knable v. Bexley City School District, 238 F.3d 755, 771 (6th Cir. 2001).
For these reasons, therefore, this Court will grant in part Plaintiff's motion for summary judgment as to remedy and require Defendants to reimburse Deptford in the amount of $52,370.00, which consists of the following expenses: $2,525.00 for Dr. Barenbaum's evaluation of H.B.; $5,301.00 for costs associated with the Country Acres Nursery and Chesterbrook Academy; and $44,544.00 for DTT services rendered before December 6, 2000.
Defendants' Motion for Summary Judgment
Defendants oppose Plaintiff's motion for summary judgment with respect to reimbursement of costs and seek a lift of the stay on the District's providing of speech and occupational therapies as well as an order holding Deptford in contempt.
Speech and Occupational Therapy
The original IEP for the 1999-2000 school year, as proposed by Deptford, called for H.B. to receive six 15-minute sessions of speech and language instruction in an individual small group setting; integrated speech and language instruction daily in the classroom; one 30-minute session of occupational therapy on an individual basis; and one 30-minute session of occupational therapy in a classroom setting. (IEP, 4/20/99, at 5.) After H.B.'s parents enrolled H.B. at the Goddard School and initiated due process hearings with the Office of Administrative Law in October 1999, the OAL entered a stay-put Order, effectively granting E.B. and P.B.'s request that compensatory education be provided to H.B. in the form of speech and occupational therapies from the point of her enrollment at Goddard School and for all times she was not given such services by the District. Moreover, in his December 6, 2000 Order, ALJ Futey opined that H.B. should have been, but was never, provided with both speech and occupational therapy. Judge Futey wrote, "[O]ccupational therapy and speech language therapies were not provided for H.B. even though they could have been so provided at the time. These times are most precious and critical for this child. As a result, the district must initiate efforts in order to accommodate the needs of this child as soon as possible." (ALJ Decision, 12/6/00 at 33). (See also id. at 35 ("It is also ORDERED that the district shall provide compensatory education in the areas of speech therapy and occupational therapy to H.B. from the point that she enrolled in the Goddard School thence and for all times that she was not otherwise given any such services by the district")). To date, Deptford has never provided these therapies and Defendants now seek to compel the District to bear the cost of providing future services to compensate for those that were not previously offered.
Defendants do not assert, however, that private funds were expended for speech or occupational therapies, for which there should be reimbursement. Instead, the B family asks this Court to lift its previous stay on requiring Deptford to provide compensatory education for those therapies, seeking an Order that requires the District to deposit money for the family's future use. In opposing this, Deptford argues that, should it be ordered to provide any compensatory education, the family has no right to a general fund. Instead, Deptford contends it should be permitted to provide the actual services, as it would be able to do so at a lesser cost to the school district than it could do by paying for private providers.
That H.B. is no longer enrolled in the school district, however, presents a substantial logistical problem. The Third Circuit has expressed a preference for compensatory education, rather than monetary damages, as a means of rectifying a failure to provide services. However, it has also allowed for the possibility that a school district could be required to bear the cost of providing ex post what it should have offered all along. In W.B. v. Matula, the Court held:
We caution that in fashioning a remedy for an IDEA violation, a district court may wish to order educational services, such as compensatory education beyond a child's age of eligibility, or reimbursement for providing at private expense what should have been offered by the school, rather than compensatory damages. . . .67 F.3d at 495. In a case such as this, where the child has left the school district in favor of a private placement, providing actual services will likely pose an impractical if not impossible burden upon those involved. Thus, though it is not necessarily the preferred vehicle, requiring Deptford to pay money into an escrow account for these services would appear to be the only available option at this late date.
While it is now clear to this Court that Defendants have failed to show any harm to H.B. from the District's failure to provide the FAPE it offered through the 1999 IEP in the least restrictive environment, it is equally clear that, in the end, Deptford has failed to supply the occupational and speech therapies to H.B. which were required and promised. That this Court has determined that the education offered to H.B. would have been provided in an environment that included all the modalities necessary for achieving a FAPE, in no way excuses the District from providing the therapies it was under an obligation to render.
The Court certainly appreciates the argument advanced by Deptford in opposition to the family's request for funds. Undoubtedly, the District raises a valid point: Deptford could likely provide H.B. with compensatory therapies at a cost far less than that which would be required to pay for the very same services of private providers. However, this Court, in fashioning a remedy, must be mindful of the equities presented. Here, the District had ample opportunity for several years to provide the required services and could have done so by whatever means proved the most cost-effective. Instead, Deptford abandoned its responsibility and, in so doing, forfeited its right to direct how that compensatory education is to be provided. Moreover, fairness counsels in favor of placing the financial responsibility for these services with Deptford, rather than with H.B.'s parents, who, without such a monetary award, might otherwise lack the resources to provide such needed therapies for their daughter.
Therefore, in exercising its discretion to fashion a remedy, this Court finds it appropriate to lift the previously imposed stay and require Deptford to provide Defendants with $8,000.00 for compensatory occupational therapy services and $44,800.00 for compensatory speech therapy, resulting in a total award to the family of $52,800.00. Request to Hold Deptford in Contempt
The total for these services, as noted in this Court's November 2, 2001 Order, was $49,475, which was based on an hourly rate of $75/hr in 2001. The hourly rate at this time is $80/hr and the costs have thus been subsequently adjusted to reflect this.
Defendants seek to have Deptford held in contempt and required to compensate Defendants for their attorneys fees and costs incurred in Deptford's failure to comply with the Orders of the OAL and ALJ as directed by the New Jersey Department of Education and this Court. This Court has already denied an earlier request by Defendants to hold Deptford in contempt subject to one directive — the immediate interim payment of $88,090.61 — with which Deptford has long since complied.
In December 2001, this Court ordered that Defendants' cross motion (brought at that time) be denied without prejudice in the event that Deptford did not comply with that specific order. (See December 11, 2001 Order). That Order required only that Deptford pay $88,090.61, which it has since done, subject to reimbursement depending on the outcome of this IDEA case. This Court refused to hold Deptford in contempt at that time and, noting that Deptford has fulfilled the obligations imposed upon it by this Court, refuses to do so now as well. The Court further finds that the Defendants' renewal of the unsuccessful contempt motion at this time is legally and factually frivolous, as no changed circumstances could even arguably justify contempt. Thus, Defendants' motion for contempt will be denied.
CONCLUSION
For the reasons discussed herein, Deptford's motion for summary judgment on the remedy issue will be granted in part and denied in part. The Court finds Plaintiff entitled to a refund of $52,370.00 from Defendants for DTT services for which it bears no financial responsibility. In addition, Defendants' cross-motion for summary judgment will be granted insofar as this Court finds it appropriate to lift the stay previously imposed upon Deptford. The Court orders the District to provide Defendants with $52,800.00 to be used in purchasing compensatory occupational and speech therapies. For practical purposes, these amounts are to be set off against one another, resulting in a net award of $430 in favor of Defendants, to be paid by Plaintiff. Finally, Defendants' motion to hold Deptford in contempt is denied. The accompanying Order is entered.
ORDER
This matter having come before the Court on the motion of Plaintiff Deptford Township School District for summary judgment on the issue of remedy and to obtain reimbursement of costs for services already paid, and on Defendants' cross-motion for summary judgment; and the Court having considered the parties' submissions; and an appropriate remedy hearing having been convened; and for the reasons set forth in the Opinion of today's date;
IT IS this 29th day of September, 2004, hereby
ORDERED that the motion of Plaintiff Deptford Township School District for summary judgment on the issue of remedy [Docket Item No. 124-1] shall be, and hereby is, GRANTED IN PART AND DENIED IN PART ; and it is
FURTHER ORDERED that Plaintiff is entitled to reimbursement from Defendants in the amount of $52,370.00, consisting of $2,525.00 for the cost of Dr. Barenbaum's evaluation, $2,490.00 for the County Acres Nursery, $2,811.00 for the Chesterbrook Academy, and $44,544.00 for discrete trial therapy services; and it is
FURTHER ORDERED that Defendants' cross-motion for summary judgment [Docket Item No. 127-1] shall be, and hereby is, GRANTED IN PART AND DENIED IN PART ; and it is
FURTHER ORDERED that Defendants are entitled to an award of $52,800.00 for use in providing H.B. with compensatory occupational and speech therapies; and it is
FURTHER ORDERED that Plaintiff's ordered reimbursement is to be set off against Defendants' award of compensatory educational funds, resulting in a net amount owed to Defendants of $430.00; and it is
FURTHER ORDERED that Defendants' request that Plaintiff be held in contempt shall be, and hereby is, DENIED ; and it is
FURTHER ORDERED that, upon Plaintiff's payment to Defendants of the sum of $430.00 as ordered above, Deptford has satisfied all educational obligations to H.B. and her parents as required by the IDEA.