Opinion
Civ. No. 01-0784 (JBS).
March 27, 2003
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
This case arises under the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400, et seq. Plaintiff Deptford Township School District brought this action as an appeal of a final administrative decision by Administrative Law Judge John Futey, which held that Deptford failed to offer a required free, appropriate public education ("FAPE") to defendant H.B., a child with autism. This motion is before the Court upon plaintiff Deptford Township School District's motion for reconsideration of the Court's Order and Opinion of February 15, 2002, which affirmed in part and reversed in part ALJ Futey's Opinion of December 6, 2000. Plaintiff Deptford argues in its motion for reconsideration that certain factual findings in the Court's decision were at odds with its ultimate determination that the FAPE was not in the least restrictive environment ("LRE"), and moves this Court to hold that Deptford provided H.B. a FAPE in the LRE. For reasons discussed herein, plaintiff Deptford's motion for reconsideration will be denied.
I. BACKGROUND
This case involves Deptford School District's 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 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 moved to the district in February 1999. (Ulrich Cert. ¶ 2.) 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. (Id. ¶ 3.) H.B.'s parents did not sign the IEP, except to acknowledge attendance at the IEP meeting, held on April 20, 1999. (Opinion, 2/15/02, at 9.) Ms. Ulrich then, by letter to H.B.'s parents dated May 17, 1999, offered to place H.B. in CDC in the mornings and the regular Pre-School ("PS") class for non-classified students in the afternoon component of her IEP. (Ulrich Letter, 5/17/99, Ulrich Cert. Ex. A.) H.B.'s parents refused this option, and enrolled H.B. in the Goddard School, a private school, at the start of the summer of 1999. After a mediation attempt failed, H.B.'s parents filed a petition for due process 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, 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.) After the school district moved for reconsideration, the ALJ denied such motion on January 11, 2001. (ALJ Letter Decision, 1/11/01.)
The school district appealed to this Court for judicial review of the ALJ's decision. (Compl.) In a decision issued on February 15, 2002, this Court determined that Deptford Township had provided a free, appropriate public education to H.B., but not in the least restrictive environment. (Opinion, 2/15/02.)
In this case, at the remedy hearing conducted on June 5, 2002, plaintiff Deptford urged the Court to reconsider its previous Opinion and Order, in which the Court ruled that Deptford provided H.B. with a free and appropriate public education ("FAPE"), but not in the least restrictive environment ("LRE"). After the Court granted leave for Deptford to file its motion, Deptford filed its motion for reconsideration on June 11, 2002, and this Court heard oral argument on July 2, 2002.
There has been substantial motion practice in this case. (Opinion, 2/15/02, at 12 n. 11.) On May 29, 2001, Deptford moved for stay of enforcement of the ALJ's decision, which was denied on September 20, 2001. After granting the motion for enforcement by third-party defendants Barbara Gantwerk and the New Jersey Attorney General on November 2, 2001, the Court granted Deptford's motion for reconsideration of that Order, on December 12, 2001, such that Gantwerk and the Attorney General's motion shall be deemed granted in part and denied in part. The Court also denied defendant's cross-motion for contempt without prejudice, and ordered Deptford to reimburse H.B.'s parents by January 2, 2002. Although H.B. submitted an application for an order to show cause why Deptford should not be in contempt for failure to make payment, Deptford subsequently made payment and this Court denied H.B.'s request on January 8, 2002. The motion to dismiss the third-party complaint by Bargara Gantwerk, Director for the New Jersey Office of Special Education, and the Attorney General, was granted in an Opinion and Order on May 24, 2002, and H.B.'s third party federal claims against these defendants were dismissed with prejudice, while H.B.'s state law claims were dismissed without prejudice to refiling in a court of competent jurisdiction.
II. DISCUSSION
A. Reconsideration/Reargument StandardPlaintiff moves for reconsideration pursuant to Local Civil Rule 7.1(g). Local Civil Rule 7.1(g) requires that a motion for reargument shall be served within 10 days of the entry of the order or judgment on which reargument is sought. See L. Civ. R. 7.1(g). Such motions should be accompanied by a "brief setting forth concisely the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Id. "A party seeking reconsideration must show more than a disagreement with the court's decision, and `recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.'"Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). As this Court has stated, "motions for reargument succeed only where a `dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entm't, 975 F. Supp. 623, 634 (D.N.J. 1996) (JBS) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)), appeal dismissed, 166 F.3d 1204 (1998). Where no facts or cases were overlooked, such a motion will be denied. Egloff v. N.J. Air Nat'l Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts Int'l v. Greate Bay Hotel Casino, 830 F. Supp. 826, 831 (D.N.J. 1992).
If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). In other words, a "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "We are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely."Resorts Int'l, 830 F. Supp. at 831 n. 3. (emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion.Panna, 760 F. Supp. at 435.
B. Analysis
Plaintiff argues that it gave defendant H.B. a free, appropriate public education ("FAPE") in the least restrictive environment ("LRE"), contrary to the Court's determination in its February 15, 2002 Opinion. Plaintiff primarily argues that the Court neglected to consider the fact that Deptford did indeed offer the choice of "regular" preschool classes to H.B., and now relies on the recently submitted certifications of case manager Janet Ulrich and Deptford Director of Special Services Raymond Sherman.
Congress passed the IDEA "to assure that all children with disabilities have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs[.]" 20 U.S.C. § 1400(c); Susan N. v. Wilson School District, 70 F.3d 751, 756 (3d Cir. 1995) (quoting 20 U.S.C. § 1400). A free, appropriate public education "consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child `to benefit' from the instruction." W.B. v. Matula, 67 F.3d 484, 491 (3d Cir. 1995) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)). The inquiry is thus whether the IEP confers a "meaningful educational benefit" on the child, not whether the child receives "more than a trivial educational benefit" from the IEP. T.R. v. Kingwood Township Bd. of Educ., 205 F.3d 572, 579 (3d Cir. 2000) (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 247 (3d Cir. 1999)).
The Third Circuit adopted a two-part test for assessing compliance with the LRE requirement: (1) whether education in the regular classroom, with the use of supplementary aids and services, can be achieved satisfactorily; and (2) if the court determines that placement outside of a regular classroom is necessary for a child's educational benefit, it must examine whether the school has mainstreamed the child to the maximum extent appropriate, i.e., whether the school has made efforts to include the child in school programs with nondisabled children whenever possible. See Kingwood, 205 F.3d at 579 (citingOberti v. Bd. of Educ. of Borough of Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d Cir. 1993)). Under the first prong, courts should consider the following factors: (1) the steps the school district has taken to accommodate the child in a regular classroom; (2) the child's ability to receive an educational benefit from regular education; and (3) the effect the disabled child's presence has on the regular classroom. Kingwood, 205 F.3d at 579 (citing Oberti, 995 F.2d at 1215-17).
In the Opinion and Order of February 15, 2002, this Court determined that, under the IDEA, plaintiff school district provided defendant H.B. with a free, appropriate public education, but not in the least restrictive environment. The Court reasoned that the school district's IEP conferred to H.B. a meaningful educational benefit because it addressed and resolved problems encountered in H.B.'s education that arose after implementation of the previous IEP through the use and employment of reasonable methods and educational services to correct H.B.'s increasingly bad behaviors. Opinion, 2/15/02, at 23-34.
Plaintiff school district originally brought this action as an appeal of ALJ Futey's decision under the judicial review provision of the IDEA, which provides in part:
Any party aggrieved by the findings and decisions . . . shall have the right to bring a civil 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. § 1415(i)(2)(A).
The Court also held that the IEP's placement of H.B. in a classroom setting with disabled peers for a half day in the morning at the Child Development Center ("CDC") in the Gloucester County Special Services School District ("GCSSSD"), and in either of the two preschool classes at Deptford's program at the Pine Acres School, one a special education class of five children, and the other a regular education preschool program with approximately 15 children who are "at risk" or may have "non-classified" problems, such as stuttering or English as a Second Language, for a half day in the afternoon, without inquiry into other options, did not comport with the IDEA's mainstreaming requirement to assure that, "[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled." 20 U.S.C. § 1412(a)(5)(A). See Opinion, 2/15/02, at 47.
Although plaintiff Deptford contends that it provided the LRE required by law and that the Court itself found that Ms. Ulrich offered the choice of "regular" preschool classes, the Court discussed at length its conclusion, from the testimony of Mrs. B and Mr. Sherman, that the school district did offer two preschool classes after the IEP was created, but that the "regular" preschool class was one that was more restrictive than a typical "regular" preschool class. See Opinion, 2/15/02, at 44-45. Although Ms. Ulrich presented in her letter of May 19 the two options of a handicapped class and a "regular" class at Pine Acres, Mrs. B testified at the administrative proceeding that Ms. Ulrich "described the two classes as being handicapped classes" at the April 20th IEP meeting, ALJ Tr., 4/19/00, at 243:5-24, while Mr. Sherman testified that certain children in the regular class may be "at-risk" or in need of a free lunch. (ALJ Tr. 10/25/00, at 123.) The Court also concluded that the regular classroom, keeping in mind that the children had non-classified problems, such as speaking with a stutter, speaking English as a second language, or testing below normal prior to kindergarten, ALJ Tr. 4/19/00, at 251-52, was likely to confer a meaningful benefit to H.B. by allowing for some progression of H.B.'s skills. See Opinion, 2/15/02, at 33. Thus, the Court throughout its Opinion was cognizant that the regular classroom option offered by Deptford after the IEP's creation consisted of children with "non-classified" problems.
Even if the second Pine Acres classroom option offered by Deptford was indeed a "regular" classroom with only a minimal number of students with non-classified problems, this does not change the fact that Deptford undertook very little consideration, if any, regarding the mainstreaming of H.B. into nondisabled preschool settings under the IDEA. As articulated by the Third Circuit, "the school district is required to take into account a continuum of possible alternative placement options when formulating an IEP, including `placing children with disabilities in private school programs for nondisabled preschool children.'" Kingwood, 205 F.3d at 580 (quoting 34 C.F.R. § 300.552). There was little evidence that such a consideration or discussion took place in H.B.'s case, where the school district merely offered its own program at Pine Acres without inquiring into other options, public or private. There was no "continuum of alternative placement options" upon which the school district relied. Although Mr. Sherman applied to the Baldwin School on behalf of H.B., upon the request of H.B.'s parents, that school was unfortunately full. From the record, there was no evidence that the school district satisfied the IDEA requirement of attempting to mainstream H.B. as much as possible by placing her in regular classrooms at public schools or private schools, other than in its own program options of the handicapped preschool class or the above mentioned preschool class of children with non-classified problems.
That Deptford failed to fulfill or consider the "mainstreaming" requirement under the IDEA is not changed by the certifications of Janet Ulrich and Raymond Sherman, which describe the Pine Acres "regular" preschool option to be a class with typical children with variations of problems as any other class would have. Janet Ulrich's certification provides that she testified at the ALJ hearing only that she had offered the choice of the two Pre-School classes at Pine Acres, one titled the Pre-School Handicapped ("PSH") class and the other the regular Pre-School class ("PS") to the parents and did not testify to the make-up of the regular PS class beyond reading from the letter. Ulrich Cert. ¶ 3. Ulrich further states:
On information and belief, based on advice of counsel, the only conflicting testimony given regarding the make-up of the regular PS class came from Mrs. B. She asserted that I told her that regular PS class was with children not having a diagnosed problem, but who may be English as a Second Language students or may stutter. Transcript of April 19, 2000, at p. 234. There is nothing to challenge in that testimony. However, on further prodding from her attorney, Mrs. B. stated that the class was "not typical," and that I told her the pupils had communications problems. Id. at 235. While I may have stated that there were some children with communication problems, I never said that the class as a whole was full of those students; in fact, there may have been 1 or 2 such students. That would likely be true in any regular education class. The regular PS class was just that, a regular class with the same variation to be found in any class.
Ulrich Cert. ¶ 4.
In addition, Raymond Sherman's certification provides that:
At the due process hearing in this case, I testified about the "regular" Pre-School ("PS") class offered by the District at Pine Acres School. At that time, I stated that while I may have referred to the regular education PS class as an "at risk" class, "at risk" was not its official name, and all that I meant was that it included children in need of pre-kindergarten intervention. Transcript of October 25, 2000 at p. 123. It was not just an English as a Second Language ("ESL") Class, although the occasional ESL student might get included. It might also be children in need of a free lunch. Ibid. The notion that the class was anything but regular was a fiction of Mrs. B's (and maybe her counsel's) imagination.
Sherman Cert. ¶ 2.
Neither of these certifications were provided to the Court in support of Deptford's motion for summary judgment. Again, even if Deptford's preschool class consisted of children with non-classified problems to the extent that any class normally would, the Court was moved by the school district's lack of efforts in inquiring into placements for H.B. that would result in her being educated with nondisabled students as much as possible. See Opinion, 2/15/02, at 34-47. Although the district applied for H.B.'s placement at the Baldwin School, a public school with a "regular" preschool program in the Pennsauken School District, which replied it was full, the school district made no further inquiries into placing H.B. into a regular classroom, including Little Angels or Here We Grow Nursery School, both suggested by Mrs. B. See id. at 37. Ms. Ulrich testified that she did not inquire into these possible options because Mrs. B. called her back and "changed her mind before I had a chance to investigate them." ALJ Tr. 2/1/00, at 57:23-24. Indeed, the B's eventual placement of H.B. in the private Goddard School further supports the notion that Deptford failed to provide a "continuum of possible alternative placement options," by not inquiring into the private school, approximately 20 minutes from H.B.'s home, as a possible placement option. Because the record indicated that the school district had little or no discussion regarding placement of H.B. in the least restrictive environment, the Court's alleged overlooking of the fact that Deptford offered a "regular" classroom does not absolve the school district of its responsibility to mainstream H.B. to the maximum extent possible and to provide a continuum of alternative placement options, which it failed to do under the LRE component of the IDEA.
Plaintiff school district contends further that it is prepared to offer to present the testimony of both Ms. Ulrich and the Pre-School class teacher, Sandra Graves, as to the make-up of the PS class. The IDEA provides that in any action brought under 20 U.S.C. § 1415(e)(2), the court "shall hear additional evidence at the request of a party. . . ." Id. Deptford never requested to present such testimony until after the matter was decided upon the voluminous record, as both sides were content to rest upon the record. Due to the conclusion that the school district failed to provide a continuum of alternative placement options and to mainstream H.B. to the maximum extent appropriate under the LRE requirement, notwithstanding a finding that the school district may have provided a "regular" classroom, such testimony is not necessary. Moreover, in this reconsideration motion, this Court did not "overlook" facts that were not presented in the record.
Plaintiff Deptford also argues that the creation of an IEP involves a process of negotiations to resolve parental/school district differences, and that a district is not bound by the first proposal it presents, citing to Bd. of Educ. of Centreville v. Bd. of Educ. of Ohio, 1993 U.S. Dist. LEXIS 21316 (S.D. Ohio Aug. 23, 1993). Deptford argues that the Court therefore erred in looking only at the written proposed IEP that the district first presented to H.B.'s parents. In Centreville, the district court considered the propriety of the placement of the child in an elementary school for the 1991-1992 school year as provided in the district's IEP, which was first presented in August 1991 and signed on August 26, 1991. Commenting upon the parents' argument that the district did not mainstream the child to the maximum extent appropriate, the court analogized the IEP's provisions to those of a contract, as cited by Deptford:
Understanding the IEP as a contract, metaphorically, the Goldmans do not allege that the school district negotiated in bad faith or presented them with a contract of adhesion or containing otherwise offensive terms; rather, the Goldmans claim that the school district breached one of the terms of the contract and seek judicial enforcement of a term of the contract freely entered into by both parties.Id. at 73. There, where one parent had signed the IEP, the district court likened the LRE component of the IEP to an essential term of a contract, one under which the parents could seek relief.
Centreville fails to support the school district's argument. Contrary to plaintiff's argument, where the parents of H.B. signed the IEP at issue in this case for attendance purposes but not for agreement with the educational program, the Court considered not only the written IEP but also the school district's subsequent offer in determining whether the school district offered an FAPE in the LRE under the IDEA. In addition, the Centreville court does not specifically refer to the IEP creation as a continuing process of negotiations requiring signatures of the parents and the school district in order for the school district to be bound by the IEP's terms. Such a distinction between initial and subsequent IEPs was not presented there. Furthermore, the analogy in Centreville nevertheless supports the general notion that the IDEA implicitly provides a right to enforce the LRE requirement, under which a parent may seek relief.
Defendant H.B. raises Union Sch. Dist. V. Smith, 15 F.3d 1519 (9th Cir.), cert. denied, 513 U.S. 965 (1994), for the contention that the district is bound by the written IEP in this case. In Smith, the district maintained that it provided the parents an option of an alternative placement for their child, though it was never formally expressed in the IEP. The district did not include the option in the written IEP partly because the parents had expressed unwillingness to consider it as a placement. The Ninth Circuit concluded that the district should have fulfilled its obligation of providing a placement in its IEP, reasoning that the formal requirement of written prior notice to parents under what is now 20 U.S.C. § 1415(b)(3) serves a host of purposes, including creating a clear record that eliminates factual disputes years later, assisting parents in presenting complaints with respect to the child's educational placement, see 20 U.S.C. § 1415(b)(2)(E), and assisting the school district by precluding reimbursement of the parents' unilateral placement of the child if the placement proposed by the district in the IEP were deemed an appropriate placement.Smith, 15 F.3d at 1526. Thus, the Ninth Circuit concluded that the school district could not stand behind the placement it suggested, which was not offered in the IEP, and rejected its excuse that the class option was not formally offered because the parents expressed unwillingness to accept that placement.
Smith thus provides support that the written IEP provided by Deptford to H.B.'s parents, listing the autism program at CDC and the preschool handicapped class at Pine Acres, formally constitutes the educational placement it proposed for H.B. The Court considered that option, as well as the school district's offer of an alternative placement of the "regular" class at Pine Acres for H.B. after the IEP was written. The Court determined in the previous Opinion that the school district's offer of the two preschool classes was made without any inquiry into mainstreaming the child to the maximum extent appropriate nevertheless fails to comport to the LRE requirements under the IDEA. Here, even accepting plaintiff's position that it offered a "regular" classroom at Pine Acres, absent any substantive discussion regarding H.B.'s education in a regular classroom with nondisabled children, the school district nevertheless failed to comport with the LRE requirement under the IDEA.
B. Fuhrmann v. East Hanover Board of Education
Though defendant H.B. does not move for reconsideration of the Court's February 15 Opinion and Order, H.B. suggested in her opposition to plaintiff's motion, as well as at the hearing, that the Court incorrectly applied the Third Circuit's decision inFuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031 (3d Cir. 1993), rather than the standard in Susan N. v. Wilson School District, supra. See Def.'s Br. at 14 n. 7. The Court applied Fuhrmann in examining whether Deptford provided H.B. with a free, appropriate public education by inquiring whether the IEP was appropriate when created in April 1999, giving less weight in the Court's review to evidence procured after such date. See Opinion, 2/15/02, at 15-20. In terms of determining the appropriateness of an IEP, Judge Garth in the opinion for the court stated that "[o]ur understanding of [Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester County v. Rowley, 458 U.S. 176 (1982)] comports with that of the district court: that the measure and adequacy of the IEP can only be determined as of the time it is offered to the student, and not at some later date." Id. at 1040. The late Judge Mansmann had stated in her concurring opinion that "evidence of what took place after the hearing officer rendered his decision in the fall of 1989 is not relevant in deciding whether [the child's] 1989-90 placement was appropriate," Fuhrmann, 993 F.3d at 1041. Although Judge Garth stated that "Judge Mansmann and I are in complete agreement as to the time when we must look at the `reasonable calculation' made pursuant to Rowley," he further stated in the opinion for the court that "evidence of a student's later educational progress may only be considered in determining whether the original IEP was reasonably calculated to afford some educational benefit." Fuhrmann, 993 F.3d at 1040.
Despite defendant's suggestion that Susan N. is controlling case law overlooked by the Court, there is a significant distinction between Fuhrmann and Susan N.. Whereas the Third Circuit in Fuhrmann confronted the issue of what weight the district court should give to evidence already in the administrative record regarding the child's progress in private school (evidence amassed after the school district's decision regarding the IEP but before the parents sought judicial review), as presented in this case, the Susan N. court addressed the extent to which a district court is required to receive evidence beyond that contained in the administrative record, under the IDEA's judicial review provision, which provides:
In any action brought under this paragraph, the court —
(i) shall receive the records of the administrative proceedings;
(ii) shall hear additional evidence at the request of the party; and
(iii) 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)(B) (emphasis added). As for additional evidence, separate and apart from the administrative record, acquired after the school district's decision regarding the child's need for special education, the Third Circuit relied upon Judge Garth's seemingly less restrictive approach inFuhrmann, and held that the district court may consider such additional evidence "only with respect to the reasonableness of the district's decision at the time it was made." Id. at 762 (emphasis in original). Thus, the Third Circuit remanded to the district court, holding that it was not within the court's discretion to reject appellants' offer of additional evidence without even evaluating it for its admissibility.
The provision was previously found at 20 U.S.C. § 1415(e)(2), as noted by the Susan N. court. See Susan N., 70 F.3d at 757 (citing 20 U.S.C. § 1415(e)(2)).
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Because the parties in this case did not request to present additional evidence under the judicial review provision of the IDEA and were content to rest upon the administrative record, the Third Circuit's directive to examine additional evidence carefully with respect to the reasonableness of the district's decision, in Susan N., does not apply with such force and relevance as defendant suggests.
Furthermore, the Court's previous Opinion was not inconsistent with Fuhrmann and Susan N., as the Court stated that it would consider testimony, reports, and observations of H.B.'s needs at or prior to the time of the IEP's creation in April 1999, while giving "considerably less weight" to post-April 1999 reports and observations regarding H.B.'s educational needs. See Opinion, 2/15/02, at 20. In particular, the Court pointed out testimony and reports of Dr. Edna Barenbaum, Kathleen McCabe-Odri, Nicole Swanfeld, and Dr. Todd Harris as providing observations regarding H.B.'s education and DTT instruction that occurred after April 1999. Id. at 18. The Court considered after-acquired evidence in assessing the reasonableness of the district's decision regarding the IEP, determining that the particular evidence here would be accorded less weight in light of the carefully developed record of the facts and circumstances confronting the parties at the time the district made its decisions. Although the Court was more persuaded by pre-April 1999 evidence of H.B.'s educational needs than observations made of H.B. post-April 1999 in determining the appropriateness of the IEP, and indeed expressed doubt whether certain evidence was appropriate in examining the IEP, see id. at 18, n. 12; id. at 26 n. 15, the Court nevertheless did take note of the post-April 1999 observations, including those by Dr. Harris regarding amount of therapy, see id. at 29 n. 21, the specific areas in which these evaluators identified problem areas, such as H.B.'s regression and babbling tendencies by Dr. Barenbaum, see id. at 26 n. 16; and other observations regarding H.B.'s needs, including improving her communication skills, see id. at 32 n. 25.
The Court indeed took the post-April 1999 evidence into account, as such evaluations and testimony informed the Court's reasoning and knowledge. The Court held that the post-April 1999 evidence was of insufficient weight to undermine the reasonableness of the district's determinations. Regardless, this is not the situation that Susan N. seeks to prohibit, that of rejecting entirely, sight unseen, additional evidence acquired after the administrative proceeding took place but before commencement of the judicial review.
III. CONCLUSION
As discussed above, even if Deptford Township School District provided a "regular" classroom at its Pine Acres location in the IEP for the 1999-2000 school year, it nevertheless failed to provide H.B. with placement in the least restrictive environment under the IDEA, absent any demonstration to consider alternative placement options to mainstream H.B. with non-disabled children to the maximum extent appropriate. Although the district's breach of its LRE obligation cannot be characterized as gross or substantial, neither can it be ignored upon the record that was presented to this Court for decision herein. Accordingly, plaintiff's motion for reconsideration of the Court's Opinion and Order of February 15, 2002, with respect to its LRE determination, will be denied. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon plaintiff Deptford Township School District's motion for reconsideration of the Court's Opinion and Order of February 15, 2002, with respect to its conclusion that plaintiff failed to provide H.B. with placement in the least restrictive environment; and the Court having considered the parties' submissions; and for reasons given in the Opinion of today's date; and for good cause shown;
IT IS on this day of March, 2003, hereby
ORDERED that plaintiff's motion for reconsideration [Docket Item 104-1] be, and hereby is, DENIED.