# L.W. v. JERSEY CITY BOARD OF EDUCATION

> District Court, D. New Jersey · April 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10278599

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

L.W.,
Plaintiff, Civil Action No. 22-6483 (SDW) (MAH)
v. OPINION
JERSEY CITY BOARD OF EDUCATION,
April 8, 2024
Defendant.

WIGENTON, District Judge.
Before this Court is Defendant Jersey City Board Education’s (“Defendant” or “JCBE”)
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, as well as Plaintiff
L.W.’s (“Plaintiff” or “L.W.”) cross-motion for summary judgment and motion for sanctions
pursuant to Federal Rule of Civil Procedure 11. Jurisdiction is proper under 20 U.S.C. §
1415(i)(2)(A) and 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b). This matter is
decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons
stated below, Defendant’s motion for summary judgment is GRANTED and Plaintiff’s cross-
motion for summary judgment and motion for sanctions are DENIED.
I. BACKGROUND
L.W. grew up in Jersey City, where JCBE is the authority responsible for providing
educational services. (D.E. 1 ¶¶ 5, 8.) In this action, L.W. seeks to reverse a New Jersey Office
of Administrative Law (“NJOAL”) decision, which held that the statute of limitations barred her
claims against JCBE for alleged deficiencies in the provision of educational services. (See
generally id.)1
A. Factual Background2
Born in 1994, L.W. enrolled in the Jersey City School District in the 1999-2000 academic

year. (DSUMF ¶¶ 2¬3.) In the 2000-2001 academic year, L.W. was referred for an evaluation to
assess her eligibility for special education, which she underwent. (Id. ¶ 4; PSUMF ¶ 36.) L.W.’s
father E.P. consented to the assessment. (PSUMF ¶ 37.) Upon review of the results, a Child Study
Team (“CST”) determined that L.W. was ineligible for services. (DSUMF ¶ 4.) E.P. was provided
with a Prior Written Notice (“PWN”) of the determination, which he did not challenge. (Id. ¶ 4;
PSUMF ¶ 40.) Included with the PWN was a two-page document regarding levels of educational
performance. (PSUMF ¶ 41.) Although E.P. was involved in this process, Superior Court orders
dated May 8, 2008 and April 23, 2009 reflected that legal and physical custody of L.W. was to
remain with her mother, H.W. (DSUMF ¶ 26.) A 2001 report suggested that H.W. was diagnosed
with schizophrenia. (PSUMF ¶ 86.)

On October 9, 2008, the Superior Court ordered JCBE to subject L.W. and her brother to
an evaluation with a CST and to increase the frequency of L.W.’s then-existing home instruction.
(Id. ¶¶ 47, 75.) At the time, JCBE only communicated with H.W., who provided consent for the
assessment. (DSUMF ¶¶ 8, 64, 87; PSUMF ¶ 48.) H.W. also confirmed that she received
documents regarding Parent Rights in Special Education (“PRISE”). (DSUMF ¶¶ 9,
64.) Thereafter, the assessments were conducted, including a social assessment, a psychological

1 A fulsome background is provided in this Court’s prior opinion, which remanded the case to the NJOAL.
See L.W. v. Jersey City Bd. of Educ., 17-CV-6451, 2018 WL 3536095 (D.N.J. July 23, 2018).
2 The factual background is drawn from the parties’ statements of material undisputed facts, including the
record materials cited therein. (See D.E. 30-2 (“DSUMF”); D.E. 36-3 (“PSUMF”).) This Court treats a
material fact as undisputed if it is uncontested in the parties’ responses to the statements (see D.E. 36-4;
D.E. 45-2), or otherwise supported by “materials in the record,” Fed. R. Civ. P. 56(c)(3).
evaluation, an educational assessment, and an audiological evaluation. (Id. ¶¶ 10, 65, 68¬69, 88;
PSUMF ¶ 76.) L.W. understood that the testing was conducted to determine whether she needed
help. (DSUMF ¶ 108.)
Ultimately, notices were addressed to H.W. and L.W., which indicated that a meeting

would be held on January 20, 2009 to interpret the results of the evaluation. (Id. ¶¶ 11, 37.) The
notices further stated that the purpose of the meeting was to determine eligibility for special
education and related services and, if applicable, to develop an Individual Education Plan
(“IEP”). (Id. ¶¶ 11, 37, 90.) Additionally, the notices indicated that documents regarding PRISE
were attached (id. ¶¶ 11, 37), though there was no proof confirming receipt of these documents
(PSUMF ¶ 19). Likewise, a notice addressed to H.W. stated that the academic, social, and
psychological assessment reports were enclosed. (DSUMF ¶ 12.) As JCBE was aware, the
evaluation placed L.W.’s reading skills at a 2.7 grade-level and her math ability at a 4.4 grade-
level. (PSUMF ¶ 98.)
On January 20, 2009, L.W. attended the meeting to determine her eligibility for special

education and related services, along with her therapist from the Division of Youth and Family
Services (“DYFS”). (DSUMF ¶¶ 13, 71, 106.) Michael LoCicero, a case worker with DYFS,
attended the meeting as well. (Id. ¶¶ 13, 71.) According to Mr. LoCicero’s case notes, L.W. was
informed that “she was going to be provided with extra support and recommended to return to
either PS#4 or a school of her choice,” and L.W. responded that “she would prefer not attending
PS#4 again and asked to be transferred to PS#17.” (Id. ¶ 14; PSUMF ¶ 78.) In later testimony,
L.W. acknowledged that this discussion occurred. (DSUMF ¶ 17.) Nevertheless, the meeting was
adjourned because H.W. was not in attendance due to sickness, and a second meeting was
scheduled for January 27, 2009. (Id. ¶¶ 18¬19, 72; PSUMF ¶ 77.)
As with the first meeting, notices were addressed to H.W. and L.W. in advance of the
second meeting, which indicated that documents regarding PRISE were attached. (DSUMF ¶ 20.)
And as with the first notices, there was no proof confirming receipt of these documents. (PSUMF
¶ 19.) Moreover, one of the notices was stamped with the notation, “Copy for DYFS.” (Id. ¶ 20.)

On January 27, 2009, L.W. attended the second meeting to determine her eligibility,
alongside her therapist, Mr. LoCicero, and a Youth Counseling Services manager who emphasized
the importance of L.W. leaving PS#4. (DSUMF ¶¶ 22, 74, 106; PSUMF ¶¶ 81–82.) At the time,
L.W. was found eligible for special education and related services due to a specific learning
disability, and an IEP was drafted. (DSUMF ¶¶ 23, 75; PSUMF ¶¶ 50–51, 80.) As a result, JCBE
was aware that L.W. “functioned in the borderline range of overall cognitive development” and
“would need special education support with accommodations and modifications.” (PSUMF ¶¶ 97,
118.) However, H.W. was not physically present at the meeting, hung up the phone when
contacted to participate, and did not answer subsequent calls that day. (DSUMF ¶ 74; PSUMF ¶
84.) L.W. testified that she could not recall these events (DSUMF ¶ 28), and there was no

documentation of any phone calls, correspondence, or home visits to L.W.’s parents after the
meeting (PSUMF ¶¶ 52, 54–55), including documentation that would confirm L.W.’s IEP was sent
to her parents (id. ¶ 53). Likewise, Mr. LoCicero testified that, if L.W. had received an IEP at the
meeting, this fact would have been recorded. (Id. ¶ 5.) Nevertheless, L.W. was aware that her
brother was receiving special services around this time, and H.W. signed an IEP for L.W.’s brother,
as well as an acknowledgment of the PRISE information. (DSUMF ¶ 33.) Similarly, H.W.
provided the CST with a form excusing herself as an IEP member, as well as a form entitled
“Participation as a Member of the IEP Team.” (PSUMF ¶ 83.) Meanwhile, JCBE maintained the
position that DYFS should obtain guardianship of L.W. in the Superior Court in order to consent
to the IEP (id. ¶ 93), though no further action was taken to obtain such consent (DSUMF ¶ 44).
During home visits by DYFS, H.W. was invariably present. (PSUMF ¶ 59.)
On February 5, 2009, L.W.’s IEP was sent to Mr. LoCicero, along with a letter stating that
“the district [could] not implement [the] IEP” and was “left with no choice but to continue L.W.’s

program of home instruction for the balance of the 2008-09 school year.” (DSUMF ¶¶ 29,
39.) Indeed, the letter advised that the Jersey City School District could neither implement the IEP
absent consent nor challenge the lack of consent in court, and a case note stated that the case was
closed due to a lack of consent. (Id. ¶¶ 40¬41, 77.) In all, JCBE communicated to DYFS that two
choices were available: either H.W. could sign the IEP, which would be implemented at PS#4, or
home instruction would continue for the remainder of the school year. (PSUMF ¶¶ 23, 56.) In
later testimony, Mr. LoCicero recalled his “ongoing efforts to get [H.W.] to cooperate” and his
“efforts to get [L.W.] to cooperate,” though he could not recall other specific actions that he
undertook in response to the absence of consent. (DSUMF ¶ 30.) Nor did JCBE directly send
L.W.’s IEP or otherwise make direct contact with, or submissions to, the Superior Court. (PSUMF

¶¶ 26, 32–33.) Instead, DYFS conveyed to the Superior Court that L.W. attended an open house
in preparation for high school, which she would begin the following year. (Id. ¶ 28.) The Superior
Court was also provided with a report that L.W. had been evaluated by the CST. (DSUMF ¶ 104.)
Throughout the 2008-2009 academic year, L.W. was regularly provided with home
instruction. (PSUMF ¶¶ 58, 73.) Then, at the start of the 2009-2010 academic year, Mr. LoCicero
was replaced by Luqman Ahmad, another DYFS case worker who was aware of L.W.’s
IEP. (DSUMF ¶¶ 43, 100–01; PSUMF ¶ 99.) According to Mr. Ahmad’s case notes, L.W.
expressed that she did “not want to go to school” and instead “want[ed] home
instruction.” (DSUMF ¶ 45.) L.W. had expressed hesitation about attending her school as early
as April 17, 2008, and she again objected to regular class instruction during the January 27, 2009
meeting. (Id. ¶¶ 83, 94.) For example, case notes from the meeting reflected that L.W.’s request
for home instruction was rejected. (PSUMF ¶¶ 87–88.) For both L.W. and DYFS, then,
continuation of home instruction was the preferred outcome. (Id. ¶ 74.) However, home

instruction was not authorized beyond 2008-2009, and L.W. was scheduled to begin high school
in the 2009-2010 as a general education student. (DSUMF ¶¶ 46, 49, 79.) Thus, JCBE assigned
L.W. to take general education high school classes. (PSUMF ¶ 96.) JCBE did not provide a PWN
before moving L.W. to general education or when refusing to change L.W.’s educational
placement to home instruction. (Id. ¶¶ 10–11.) Thereafter, around October or November of 2009,
L.W. stopped attending school. (DSUMF ¶ 51; PSUMF ¶ 102.) L.W. initially stopped attending
PS#4 in March 2008. (PSUMF ¶ 46.)
On May 13, 2010, L.W. was removed from the school roster based on a purported lack of
attendance. (DSUMF ¶¶ 45, 52, 80; PSUMF ¶ 108). At the time, L.W. was sixteen years
old. (DSUMF ¶ 52; PSUMF ¶ 108.) According to Mr. Ahmad’s case notes, H.W. acknowledged

that L.W. may have been removed from the rolls. (DSUMF ¶ 53.) Likewise, Mr. Ahmad’s case
notes reflected that he told L.W. she had been removed from the school roster. (Id. ¶
54.) Nevertheless, JCBE did not provide a PWN when it removed L.W. from the rolls. (PSUMF
¶ 12.) Furthermore, L.W. was never re-registered for school and no claim was subsequently filed
by her or H.W. (DSUMF ¶¶ 55–56.) Instead, L.W. acknowledged that she moved out of Jersey
City in 2011 and began to reside in Parsippany. (Id. ¶¶ 61, 80.) L.W. later filled out an intake
form for a homeless shelter in Morris Plains. (PSUMF ¶ 60.)
On December 19, 2016, L.W. filed a due process petition against JCBE for violations of
the Individuals with Disabilities Education Act (“IDEA”), the Rehabilitation Act (“RA”), the
Americans with Disabilities Act (“ADA”), and New Jersey law. (DSUMF ¶ 1; PSUMF ¶ 114.) At
no point prior to this date did L.W. or H.W. initiate a due process petition or request for mediation
against JCBE. (DSUMF ¶ 57.) Likewise, L.W. acknowledged that she did not seek additional
services prior to the filing of the due process petition. (Id. ¶ 62.)

B. Procedural Background
On May 30, 2017, the NJOAL rendered a decision on cross-motions for summary judgment
filed by the parties. (D.E. 26-1 at 372–86.) In the decision, Administrative Law Judge (“ALJ”)
Ellen S. Bass found that the due process petition was untimely under the IDEA’s two-year statute
of limitations because there were “several points in time where L.W.’s parents knew or should
have known (KOSHK) that her rights ostensibly were being violated,” and each point occurred
more than two years before the filing. (Id. at 380.) ALJ Bass further found that “until [L.W.]
reached the age of majority it is irrelevant what [she] knew or should have known, because the
IDEA required that her parents advocate on her behalf.” (Id. at 381.) Finally, ALJ Bass found
that the exceptions to the statute of limitations did not apply because JCBE “communicate[d]

repeatedly with the adults responsible for L.W.” (Id. at 383.) Since the due process petition was
untimely, the NJOAL dismissed the claims against JCBE. (Id. at 384.) The NJOAL decision only
extended to the IDEA claims, not the other federal law claims. (Id. at 373.)
On August 27, 2017, L.W. sought reversal of the NJOAL decision by filing a complaint
against JCBE in this Court. (Id. at 387–438.) However, on July 23, 2018, this Court denied the
parties’ cross-motions for summary judgment. See L.W., 2018 WL 3536095. In issuing the denial,
this Court found that there was “a genuine issue of material fact as to who was authorized to
advocate for L.W.’s IDEA rights.” Id. at *5. Specifically, this Court found:
[I]n 1999, H.W. and E.P. shared legal and physical custody of L.W., but E.P. was
given sole authority to make educational decisions for L.W. . . . There is no order
in the record that revokes that authority. Later orders from the New Jersey Superior
Court suggest that, during different periods, DYFS or H.W. had legal custody of
L.W. (without clarifying what legal rights or responsibilities E.P. had).
Unfortunately, gaps in the record fail to explain exactly how and when those
transitions occurred or what effect they had on prior orders.

Id. Additionally, this Court found that even if “L.W.’s parents had legal authority to assert her
rights, their mental health and addiction issues and the chaotic nature of their lives raise[d]
questions as to whether 1) they were aware of the evaluation process, and 2) they were capable of
advocating for her.” Id. In other words, genuine issues of material fact existed as to whether H.W.
or E.P. knew or should have known about the IDEA claims. Thus, this Court remanded the case
to the NJOAL for a due-process hearing. Id. at *6.
On August 9, 2022, the NJOAL rendered a decision on remand. (D.E. 26-2 at 116–157.)
In the decision, ALJ Barry E. Moscowitz summarized the extensive factual record, including
testimony that L.W., Mr. LoCicero, and Mr. Ahmad offered at the due-process hearing. (Id. at
119–143.) Ultimately, ALJ Moscowitz concluded that: (1) “L.W. did not have standing to make
her claims under the IDEA until she turned eighteen and the parental rights transferred to her” (id.
at 146); (2) “the statute of limitations bar[red] L.W. from making those claims” (id. at 147); and
(3) “the exceptions to the statute of limitations d[id] not apply” (id. at 152). According to ALJ
Moscowitz, the statute of limitations barred L.W. from making her claims because “the latest she
knew or should have known of the alleged action that forms the basis of her complaint was in
2012, the year she turned eighteen” (id. at 146), while the latest H.W. should have known of the
alleged action was “in 2010, when L.W. was unenrolled from the school” (id. at 150). Moreover,
ALJ Moscowitz found that exceptions to the statute of limitations did not apply because L.W. and
H.W. received notices for the January 2009 meetings, as well as the PRISE and the IEP, but H.W.
refused to consent to special education and related services, and L.W. refused to attend school,
even though DYFS provided regular assistance. (Id. at 148–49.) Finally, ALJ Moscowitz found
that JCBE was under no obligation to provide any additional process after consent was refused,
and that home instruction was never part of any IEP. (Id. at 149–50.)
On November 6, 2022, L.W. once again sought reversal of the NJOAL decision by filing

this action against JCBE. (D.E. 1.) L.W. sought relief from JCBE for violations of various
substantive and procedural requirements under the IDEA (id. ¶¶ 148–20); failure to communicate,
failure to accommodate, and discrimination under the ADA (id. ¶¶ 221–34); discrimination and
retaliation under the RA (id. ¶¶ 235–41); discrimination and retaliation under the New Jersey Law
Against Discrimination (“NJLAD”) (id. ¶¶ 242–44); and denial of procedural due process (id. ¶¶
245–56).
On September 22, 2023, Defendant filed a motion for summary judgment. (D.E. 30.) On
October 12, 2023, Plaintiff filed opposition to Defendant’s motion, as well as a cross-motion for
summary judgment. (D.E. 42.) On November 3, 2023, Defendant filed opposition to Plaintiff’s
cross-motion, as well as a reply in support of its own motion. (D.E. 45.) And on November 17,

2023, Plaintiff filed a reply in support of her own motion. (D.E. 49.)
Separately, Plaintiff filed a motion for sanctions on December 12, 2023. (D.E. 53.) In
support of the motion, Plaintiff argued that Defendant engaged in sanctionable conduct by offering
factual and legal misrepresentations in its opposition and reply on summary judgment. (See D.E.
53-1.) Defendant filed opposition on January 5, 2024 (D.E. 55), and Plaintiff filed a reply on
January 12, 2024 (D.E. 56).
II. LEGAL STANDARD
A. Administrative Appeal

Under New Jersey law, the “process for resolving disputes arising in special education
cases starts with mediation.” S.H. v. State-Operated Sch. Dist. of City of Newark, 336 F.3d 260,
266 (3d Cir. 2003) (citing N.J.A.C. § 1:6A–4.1). If mediation does not succeed, the case is
forwarded to the NJOAL and assigned to an ALJ. Id. Once the ALJ renders a decision, any party
has the right to appeal to a district court. Id. The reviewing court “shall receive the records of the
administrative proceedings; shall hear additional evidence at the request of a party; and basing its
decision on the preponderance of the evidence, shall grant such relief as the court determines is
appropriate.” 20 U.S.C. §§ 1415(i)(2)(C)(i)-(iii).
On appeal, the district court must engage in a “modified de novo review,” affording “due
weight and deference to the findings in the administrative proceedings.” D.K. v. Abington Sch.
Dist., 696 F.3d 233, 243 (3d Cir. 2012) (citations omitted). If the court disagrees with the
NJOAL’s factual findings, it must give an explanation as to why. Id. Similarly, the court must

accept the ALJ’s credibility determinations with respect to live testimony, unless non-testimonial
evidence would justify a contrary conclusion. Id. On the other hand, review of the ALJ’s legal
conclusions, such as application of the statute of limitations, are subject to plenary review. P.P.
ex rel. Michael P. v. W. Chester Area Sch. Dist., 585 F.3d 727, 735 (3d Cir. 2009).
B. Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if the
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers or other materials” demonstrate that there is no genuine
dispute as to any material fact, and, construing all evidence and inferences in a light most favorable
to the non-moving party, “the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if there is “a sufficient
evidentiary basis on which a reasonable jury could find for the non-moving party,” and it is
material if it has the ability to “affect the outcome of the suit under governing law.” Kaucher v.

County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).
At summary judgment, “the judge’s function is not to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine issue for trial.” Brooks v. Kyler,
204 F.3d 102, 105 n.5 (3d Cir. 2000). The moving party bears the burden of identifying evidence
to show that there is no genuine issue for trial. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364
F.3d 135, 145-46 (3d Cir. 2004). Once the moving party satisfies this burden, the non-moving
party must “counter with specific facts which demonstrate that there [is] a genuine issue for trial.”
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Importantly, “the non-
moving party must rebut the motion with facts in the record and cannot rest solely on assertions
made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt,

455 F.3d 195, 201 (3d Cir. 2006).
C. Sanctions
Federal Rule of Civil Procedure 11 “imposes on any party who signs a pleading, motion,
or other paper . . . an affirmative duty to conduct a reasonable inquiry into the facts and the law
before filing.” Bus. Guides, Inc. v. Chromatic Commc'ns Enterprises, Inc., 498 U.S. 533, 551
(1991). The well-established legal standard to evaluate alleged violations of this requirement is
“reasonableness under the circumstances,” which remains “within the sound discretion of the
District Court.” Brubaker Kitchens, Inc. v. Brown, 280 F. App'x 174, 185 (3d Cir. 2008).
Reasonableness is “an objective knowledge or belief at the time of the filing of a challenged paper
that the claim was well-grounded in law and fact.” Ford Motor Co. v. Summit Prods. Inc., 930
F.2d 277, 289 (3d Cir. 1991) (citations omitted).
Courts may impose an “appropriate sanction” for violations of Federal Rule of Civil
Procedure 11. Fed. R. Civ. P. 11(c). Although sanctions are intended to deter frivolous filings to

prevent misuse of judicial resources, they should be issued “only in the exceptional circumstance
where a claim or motion is patently unmeritorious or frivolous.” Doering v. Union Cnty. Bd. of
Chosen Freeholders, 857, F.2d 191, 194 (3d Cir. 1988) (citations omitted). “Courts . . . have
denied sanctions where the law and facts, even if not adopted by the court, are ambiguous and
could be reasonably interpreted in more than one way.” In re Cendant Corp. Derivative Action
Litig., 96 F. Supp. 2d 403, 405 (D.N.J. 2000) (citations omitted).
III. DISCUSSION
A. Defendant’s Motion for Summary Judgment

In support of its motion for summary judgment, Defendant argues that the administrative
decision reached below should be upheld on appeal. (D.E. 30-3; D.E. 45.) Specifically, Defendant
argues that Plaintiff did not have standing to bring her IDEA claims until she was eighteen, that
these claims were untimely when brought, and that no exceptions to the statute of limitations
applied. (D.E. 30-3 at 11–30; D.E. 45 at 6–19.) Furthermore, Defendant argues that Plaintiff’s
ADA, RA, and NJLAD claims cannot be considered on a separate basis, and that in any event,
these claims are untimely. (D.E. 30-3 at 20–21; D.E. 45 at 39–43.) As to Plaintiff’s procedural
due process claim, Defendant argues that ALJ Moscowitz properly considered the issue of parental
authority and concluded that H.W. could advocate for L.W. on the basis of the testimony presented
to the NJOAL. (D.E. 45 at 43–44.) And statutes of limitations aside, Defendant argues that the
evidence demonstrates its compliance with the various substantive and procedural requirements of
the IDEA. (Id. at 19–39.)
Each argument will be considered in turn.
i. IDEA

“The IDEA protects the rights of disabled children by mandating that public educational
institutions identify and effectively educate these children, or pay for their education elsewhere if
they require specialized services that the public institution cannot provide.” D.K., 696 F.3d at 244
(quoting P.P., 585 F.3d at 735). Under this rubric, local education agencies are required to (1)
identify children in need of special education services, and (2) provide them with a free appropriate
public education (“FAPE”). Id. at 244; see also 20 U.S.C. § 1412(a)(3)(A) (“All children with
disabilities residing in the State . . . who are in need of special education and related services, are
identified, located, and evaluated.”); 20 U.S.C. § 1412(a)(1)(A) (“A free appropriate public
education is available to all children with disabilities residing in the State between the ages of 3
and 21.”). A FAPE “consists of educational instruction specially designed to meet the unique

needs of the . . . child, supported by such services as are necessary to permit the child to ‘benefit’
from the instruction.” S.H., 336 F.3d at 264 (quoting Susan N. v. Wilson Sch. Dist., 70 F.3d 751,
756 (3d Cir. 1995)). A state provides a FAPE by means of an IEP. Shore Reg’l High Sch. Bd. of
Educ. v. P.S. ex rel. P.S., 381 F.3d 194, 198 (3d Cir. 2004); see also Susan N., 70 F.3d at 756 (“The
primary mechanism for delivering a free appropriate education is the development of a detailed
instruction plan, known as an [IEP] for each child classified as disabled.”). In New Jersey, the IEP
is developed by a CST along with “parents, a teacher familiar with the students, and other
personnel.” Shore, 381 F.3d at 198-99, 264-65.
As discussed, Plaintiff alleges that Defendant violated not only the substance of the IDEA,
but also various procedural requirements. However, when an alleged IDEA violation is the subject
of an administrative proceeding, “a decision made by a hearing officer shall be made on substantive
grounds based on a determination of whether the child received a [FAPE].” 20 U.S.C. §

1415(f)(3)(e)(i). Moreover, a district court cannot review an alleged IDEA violation until the
administrative process has been complete. Komninos by Komninos v. Upper Saddle River Bd. of
Educ., 13 F.3d 775, 778 (3d Cir. 1994). Therefore, “[a] procedural violation is actionable under
the IDEA only if it results in a loss of educational opportunity for the student, seriously deprives
parents of their participation rights, or causes a deprivation of educational benefits.” D.S. v.
Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d Cir. 2010). Additionally, an IDEA violation is only
actionable if it is litigated within a two-year period whose accrual is governed by the discovery
rule. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 613 (3d Cir. 2015). Indeed, a parent
may file a complaint regarding deficiencies in the provision of educational services, 20 U.S.C. §
1415(b)(6)(A), and such a filing triggers an impartial due process hearing. 20 U.S.C. §

1415(f)(1)(A). Nevertheless, the parent must “request an impartial due process hearing within 2
years of the date the parent . . . knew or should have known about the alleged action that forms the
basis of the complaint.” 20 U.S.C. § 1415(f)(3)(C).
Here, L.W.’s claims are untimely under the IDEA because H.W. knew or should have
known about JCBE’s alleged failure to provide a FAPE more than two years before the due process
petition was filed. Similarly, H.W. should have discovered any alleged loss of educational
opportunity, serious deprivation of participation rights, or deprivation of educational benefits
within this period. First, in October 2008, H.W. consented to L.W.’s evaluation and received
documents regarding PRISE. Second, a notice addressed to H.W. indicated that a meeting would
be held on January 20, 2009 to interpret the results of the evaluation, determine eligibility for
special education and related services, and develop an IEP. Third, after the meeting was adjourned
because H.W. was not in attendance due to sickness, another notice was addressed to H.W. for a
meeting to be held on January 27, 2009. Importantly, both notices addressed to H.W. indicated

that documents regarding PRISE were attached, and a notice also stated that evaluation reports
were enclosed. Fourth, H.W. was not physically present at the meeting, hung up the phone when
contacted to participate, and did not answer subsequent calls that day, but H.W. provided the CST
with forms regarding excusal and participation in the IEP. Fifth, H.W. was invariably present
during home visits by DYFS personnel, who received the IEP, were aware of the need for consent,
and made ongoing efforts to get H.W. to cooperate. Sixth, H.W. signed an IEP for L.W.’s brother,
as well as an acknowledgment of the PRISE information. Seventh, H.W. acknowledged that L.W.
may have been removed from the rolls around May 2010, but L.W. was never re-registered and no
claim, due process petition, or request for mediation was ever filed by H.W. Plainly, at numerous
junctures between October 2008 and May 2010, H.W. knew or should have known about JCBE’s

alleged failure to provide a FAPE, or any other alleged educational or serious participation issues,
but she either failed to discover such issues or chose not to pursue relief.3 Therefore, ALJ
Moscowitz correctly determined that the statute of limitations barred the due process petition,
which was filed by L.W. in December 2016.4

3 Even if H.W. could not have known about the ineligibility determination in 2001, by the time she was
involved in the evaluation process in 2008 and 2009, she knew or should have known about any alleged
failure to provide a FAPE, or any other educational or serious participation issues. In any event, the
evidence suggests that E.P. had authority over educational decisions in 2001 (see D.E. 37 at 102–03), and
he certainly knew or should have known about the ineligibility determination and the underlying evaluation
process.
4 To be sure, the record contained gaps. For instance, no proof confirmed H.W.’s receipt of the notice
documents, DYFS appeared to be the intended recipient of a notice, no documents or records confirmed
that the IEP was sent to H.W. after the second meeting, a DYFS employee could not recall specific actions
Even if the analytic focus of the discovery rule is shifted from H.W. to L.W., ALJ
Moscowitz’s determination remains correct. Therefore, this Court need not decide whether L.W.
could have filed the due process petition before she turned eighteen, or whether the statute of
limitations was tolled until such time. Indeed, by the time L.W. turned eighteen, she knew or

should have known about JCBE’s alleged failure to provide a FAPE, or any other alleged
educational or serious participation issues. For one, the meeting notices addressed to H.W. were
likewise addressed to L.W., who was similarly aware that her brother was receiving special
services. Additionally, L.W. underwent an evaluation, understood that the assessments were
conducted to determine whether she needed help, and attended the January 2009 meetings, where
she learned that she would receive extra help, initially asked to be transferred to another school,
subsequently objected to classroom instruction, and was ultimately rejected for home instruction.5
Moreover, L.W. received support from a therapist who attended the meetings, a counseling
professional who appreciated the importance of a school transfer, and DYFS personnel who
understood and shared her preference for home instruction over classroom instruction, but who

also received the IEP, appreciated its terms, and made efforts to obtain her cooperation. Finally,
L.W. stopped attending school around October or November of 2009, was informed by DYFS that
she was removed from the school roster in May 2010, and moved out of Jersey City in 2011. These
facts suggest that L.W. was aware of the educational options that were available and unavailable
to her, but that she chose to remain out of school and leave town, rather than seek additional
services or litigate alleged deficiencies in her educational options.

that he undertook in response to the absence of consent, and H.W. may have suffered from schizophrenia
throughout this time. Nonetheless, based on the totality of the evidence, the NJOAL could have found that
H.W. was aware of the IEP and that her participation was repeatedly solicited. In particular, the fact that
H.W. signed an IEP for L.W.’s brother’s could have suggested that she possessed the relevant awareness.
5 While L.W. could not recall certain aspects of H.W.’s abstention from the second meeting, she appeared
to recall other relevant aspects of the meetings.
Before addressing possible exceptions to the statute of limitations, it is noted that ALJ
Moscowitz did not offer an adequate analysis of who was authorized to advocate for L.W.’s IDEA
rights, even though this question was a subject of the remand. Instead, ALJ Moscowitz merely
found that H.W. had authority over L.W.’s education because the May 8, 2008 and April 23, 2009

Superior Court orders reflected H.W.’s custody of L.W. and “[n]othing in the record indicate[d]
otherwise.” (D.E. 26-3 at 119–20.) However, this Court already found that these Superior Court
orders were insufficient because the record included further indication that E.P. had sole authority
over L.W.’s education in 1999, and there was no explanation of any subsequent revocation or
transition. Nevertheless, this Court will not reverse ALJ Moscowitz’s determination because the
testimony offered at the due process hearing could have supported the conclusion the H.W. was
authorized to advocate for L.W.’s IDEA rights. In particular, the fact that H.W. signed an IEP for
L.W.’s brother could have suggested that she possessed the relevant decision-making authority.
Notwithstanding the possible untimeliness of her IDEA claims, L.W. argues that the
exceptions to the statute of limitations lifted the bar on her due process petition. (D.E. 42-2 at 24–

32; D.E. 49 at 7–12.) Under the IDEA, the statute of limitations
shall not apply to a parent if the parent was prevented from requesting the hearing
due to — (i) specific misrepresentations by the local educational agency that it had
resolved the problem forming the basis of the complaint; or (ii) the local educational
agency’s withholding of information from the parent that was required under this
subchapter to be provided to the parent.

20 U.S.C. § 1415(f)(3)(D). In order to utilize the first exception, a plaintiff carries the burden to
demonstrate “that the school intentionally misled them or knowingly deceived them regarding their
child’s progress.” D.K., 696 F.3d at 246 (emphasis added). In order to utilize the second
exception, a plaintiff carries the burden to demonstrate “[a] failure to supply statutorily mandated
disclosures.” Id. Under both exceptions, “a plaintiff must also show that the misrepresentations
or withholding caused her failure to request a hearing or file a complaint on time.” Id.
Here, L.W. has not met her burden under either exception to the statute of limitations
because she has not established that JCBE intentionally misled or knowingly deceived her parents,

or that any specific misrepresentation or withholding of information caused the untimely filing of
her due process petition. Each exception will be addressed in turn.
a. Specific Misrepresentations
L.W. argues that JCBE made specific misrepresentations because it appreciated that she
could not succeed in a general education environment, failed to update the Superior Court on the
outcome of the evaluation process, and suggested to DYFS that home instruction would not remain
in place upon the filing of a due process petition. (D.E. 42-2 at 30–32; D.E. 49 at 10–12.)
However, the Superior Court was updated on at least certain developments, and JCBE did not
make any suggestion to DYFS about the status of home instruction upon the filing of a due process
petition. Instead, JBCE communicated to DYFS that home instruction would continue for the

remainder of the year in the event that H.W. did not sign the IEP. Even if this communication
somehow misled or deceived DYFS about L.W.’s progress, there is no proof that JCBE intended
or knew such a result would occur, especially vis-a-vis L.W.’s parents. Nor is there proof that
JCBE intentionally misled or knowingly deceived L.W.’s parents when it reported ineffectively
to, or took insufficient action in, the Superior Court. Likewise, there is no proof that these alleged
specific misrepresentations caused the untimely filing of L.W.’s due process petition. Therefore,
ALJ Moscowitz correctly determined that this exception to the statute of limitations did not apply.
b. Withholding of Information
L.W. argues that JCBE withheld information because it did not provide PWNs,6 eligibility
notices,7 or transfer-of-rights notices8 at various points throughout her education. (D.E. 42-2 at
24–30; D.E. 49 at 7–10.) As an initial matter, this Court notes that E.P. received a PWN in

connection with the 2001 ineligibility determination and that notices were addressed to H.W. in
2009 regarding L.W.’s evaluation and eligibility. Although no proof confirmed H.W.’s receipt of
the notices, L.W. carries the burden to prove that JCBE withheld information, not vice versa. And
the speculative possibility of non-mailing cannot sustain this burden, notwithstanding the “Copy
for DYFS” notation stamped onto one of documents. Even if JCBE did not provide eligibility
notices, there is no proof that this failure caused the untimely filing of L.W.’s due process petition.
Similarly, there is no proof that failure to provide PWNs or transfer-of-rights notices caused a
delay.9 To the contrary, the evidence suggests that H.W.’s and L.W.’s actions would have
remained unchanged by the alleged withheld information, as H.W. declined participation in the
IEP process, L.W. stopped attending school, and both H.W. and L.W. were aware that another

member of their family was receiving special education and related services. Therefore, ALJ
Moscowitz correctly determined that this exception to the statute of limitations did not apply.

6 The IDEA requires that PWNs be shared with parents “whenever the local educational agency—(A)
proposes to initiate or change; or (B) refuses to initiate or change, the identification, evaluation, or
educational placement of the child, or the provision of a free appropriate public education to the child.” 20
U.S.C. § 1415(b)(3).
7 The IDEA requires that “a copy of the evaluation report and the documentation of determination of
eligibility” be shared with parents “[u]pon completion of the administration of assessments and other
evaluation measures.” 20 U.S.C. § 1414(b)(4)(B).
8 The IDEA and New Jersey law require local educational agencies to notify children that all rights accorded
to their parents transfer to them upon their eighteenth birthday. 20 U.S.C. § 1415(m)(1)(B)-(C); N.J.A.C.
§ 6A:14-2.3(m).
9 In light of this absence of evidence, this Court need not decide whether PWNs were required when L.W.
was rejected for home instruction, moved to general education, or removed from the rolls, or whether the
transfer-of-rights notice could have been provided after L.W. moved out of Jersey City before her
eighteenth birthday.
Since the statute of limitations bars L.W.’s due process petition and the exceptions to the
statute of limitations do not apply, this Court need not decide whether the evidence demonstrates
JCBE’s compliance with the various substantive and procedural requirements of the IDEA.
ii. ADA, RA, NJLAD

The Third Circuit has held that the IDEA statute of limitations governs “claims made for
education” under the RA. P.P., 585 F.3d at 737. Courts in this district regularly cite this holding
to apply the IDEA statute of limitations to ADA and RA claims for failure to accommodate,
discrimination, and retaliation, so long as such claims are “entirely premised” on the denial of
educational services. See e.g., Estate of S.B. by & through Bacon v. Trenton Bd. of Educ., 17-CV-
07158, 2018 WL 3158820, at *6 (D.N.J. June 28, 2018); E.E. v. Ridgefield Park Bd. of Educ., CV
19-CV-1221, 2020 WL 3097473, at *8 (D.N.J. June 11, 2020), aff'd Esposito v. Ridgefield Park
Bd. of Educ., 856 Fed. Appx. 367 (3d Cir. 2021). Here, L.W. brings ADA and RA claims for
failure to accommodate, discrimination, and retaliation that are entirely premised on the denial of
educational services. (D.E. 1 ¶¶ 221–56).10 Therefore, the IDEA statute of limitations applies to
such claims, which are barred as untimely.11 Furthermore, without federal causes of action

remaining, this Court cannot exercise jurisdiction over the NJLAD claims, which arise from a state
cause of action. See 28 U.S.C. § 1367.12

10 While L.W.’s ADA claims also include failure to communicate under 28 C.F.R. § 35.160(a)(1), that
regulation is merely an implementation of the ADA’s prohibition on discrimination. See 28 C.F.R. §
35.101(a).
11 Even if the IDEA statute of limitations does not apply, New Jersey’s two-year statute of limitations for
personal injury actions would still bar these claims. See Disabled in Action of Pennsylvania v. Se.
Pennsylvania Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008); N.J.S.A. § 2A:14-2(a).
12 In any event, the NJLAD claims would likely be barred under the two-year statute of limitations for that
cause of action. See N.J.S.A. § 10:5-12.11.
iii. Procedural Due Process
Plaintiff seeks relief for denial of procedural due process in connection with ALJ
Moscowitz’s failure to consider who was authorized to advocate for L.W.’s IDEA rights (D.E. 1
¶¶ 246–54), as well as ALJ Moscowitz’s reliance upon the involvement of DYFS and the New

Jersey Superior Court (id. ¶ 255). However, these claims are not properly leveled against JCBE,
the sole remaining Defendant in this action.
Accordingly, Defendant’s motion for summary judgment is GRANTED.
B. Plaintiff’s Cross-Motion for Summary Judgment

In support of her cross-motion for summary judgment, Plaintiff argues that the
administrative decision reached below should be reversed on appeal. (D.E. 42-1 at 13–15.)
Specifically, Plaintiff argues that exceptions to the statute of limitations applied. (Id. at 15–25;
D.E. 49 at 7–12.) Furthermore, Plaintiff argues that the evidence demonstrates Defendant’s
violation of the various substantive and procedural requirements of the IDEA, and that neither she
nor her parents knew or should have known about these violations. (D.E. 42-1 at 25–38; D.E. 49
at 12–21.) As to violations of ADA, RA, and NJLAD, Plaintiff argues that these claims are distinct
from the IDEA claims. (D.E. 42-1 at 38–40; D.E. 49 at 21.) Additionally, as to the denial of
procedural due process, Plaintiff argues that the evidence demonstrates NJOAL’s liability on this
claim. (D.E. 42-1 at 40–41; D.E. 49 at 21.)
As discussed, this Court does not find these arguments to be persuasive and concludes that
the administrative decision below should be upheld on appeal. Indeed, after considering the
evidence submitted in connection with both the motion and the cross-motion for summary
judgment, this Court has determined that L.W. and H.W. knew or should have known of the basis
for the complaint; that no exceptions to the statute of limitations applied; that it did not need to
adjudicate the merits of the IDEA claims; that the ADA and RA claims were not distinct from the
IDEA claims; that jurisdiction did not exist for the NJLAD claim; and that the procedural due
process claim was not properly leveled against Defendant. (See supra at Section III.A.)
Accordingly, Plaintiff’s cross-motion for summary judgment is DENIED.

C. Plaintiff’s Motion for Sanctions
In support of her motion for sanctions, Plaintiff argues that Defendant offered over thirty
factual misrepresentations, including false statements about recipients of the IEP and the PRISE.
(D.E. 53-1 at 11–14.) Moreover, Plaintiff argues that Defendant offered numerous legal
misrepresentations, including false contentions about the need for remand, the scope of the PWN
requirement, the application of the stay-put rule, the appropriateness of evidence regarding
policies, and the availability of home instruction. (Id. at 14–17.) However, this Court finds that
these alleged misrepresentations are neither patently unmeritorious nor frivolous, but largely
ambiguous and subject to more than one reasonable interpretation. In other words, no exceptional
circumstances exist, even if some statements or contentions were not properly supported.

Accordingly, Plaintiff’s motion for sanctions is DENIED.
IV. CONCLUSION
For the reasons set forth above, Defendant’s motion for summary judgment is GRANTED,
and Plaintiff’s cross-motion for summary judgment and motion for sanctions are DENIED.

___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk
cc: Parties
Michael A. Hammer, U.S.M.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10278599. Public record. Not legal advice.