SIMANDLE, Chief Judge:
This matter comes before the Court on Defendant Washington Township School District's ("Defendant" or "the District") motion to dismiss for lack of subject matter jurisdiction based on Plaintiffs' purported failure to exhaust administrative remedies. [Docket Item 8.] In this action, Plaintiffs J.Q. and S.B., individually and on behalf of their daughter, I.Q. (collectively, "Plaintiffs"), allege that Defendant discriminated against their 13 year-old daughter, an eighth grade student with Attention Deficit Hyperactivity Disorder ("ADHD"), on the basis of disability by failing to provide a Section 504 plan in violation of the Americans with Disabilities Act ("ADA"), Section 504 of the Rehabilitation Act ("Section 504"), and the New Jersey Law Against Discrimination ("NJLAD"). Defendant argues that the exhaustion requirement under the Individuals with Disabilities Act ("IDEA") applies to Plaintiffs' claims even though they do not assert a cause of action under the IDEA. Because Plaintiffs concede that they failed to exhaust the IDEA'S administrative remedies, Defendant's motion turns on whether Plaintiffs seek relief which is available under the IDEA and whether the IDEA's exhaustion requirements apply to their non-IDEA claims. For the reasons discussed below, the Court will grant Defendant's motion to dismiss on exhaustion grounds.
The Court accepts as true the following facts from Plaintiffs' Complaint for the purposes of the instant motion to dismiss. I.Q. is a 13 year-old eighth grade student in the Washington Township School District. (Compl. [Docket Item 1] ¶ 12.) I.Q. was diagnosed with ADHD in April, 2011. (Id. ¶ 13.) ADHD is an impairment which causes I.Q. to have "difficulty concentrating, paying attention, thinking clearly, focusing, staying organized, keeping track of things and remembering to complete her work, to bring her completed work to school, and to finish her work." (Id.)
During the 2012-2013 school year, when I.Q. was in sixth grade, Plaintiffs requested that the District conduct an evaluation of I.Q.'s alleged disability. (Id. ¶ 14.) The District did not conduct a "full child team evaluation" as requested. (Id. ¶ 15.) Instead, the District determined that I.Q.'s
Despite these accommodations, I.Q. continued to struggle in school and some teachers did not follow the I & RS Plan. (Id. ¶ 19.) I.Q.'s grades were reduced if she did not turn in work on time. (Id. ¶ 18.) I.Q.'s teachers informed Plaintiffs that I.Q. was "having trouble staying on task and on topic during class." (Id. ¶ 21.)
During the 2013-2014 school year, when I.Q. was in seventh grade, her difficulties with organization and attention continued. (Id. ¶ 22.) On September 22, 2014, Plaintiffs again requested that the District "evaluate [I.Q.] in areas of suspected disability to determine her eligibility for services by a[sic] way of a 504 Plan." (Id. ¶ 24.) On October 8, 2014, Plaintiffs attended a meeting with the District, but the necessary staff was not present to determine I.Q.'s need for a Section 504 Plan. (Id. ¶ 25.) The District declined to conduct an evaluation, finding that I.Q.'s grades were good and she could not have a disability. (Id.) A teacher at the meeting stated that in her 25 years of experience, she had not encountered a student with ADHD who needed accommodations. (Id.)
After the District declined Plaintiffs' request for an evaluation, Plaintiffs engaged a neuropsychologist, Dr. Sarah Allen Levin, to evaluate I.Q. (Id. ¶ 26.) Dr. Levin found that I.Q. has "difficulty organizing her materials[] and regulating her emotions." (Id.) I.Q.'s "scores in the areas of working memory represented a relative weakness in her cognitive profile," which combined with her ADHD, negatively impacted her ability to learn. (Id.) Dr. Levin recommended that I.Q. be provided a Section 504 Plan, including but not limited to, the following accommodations: permit I.Q. to have objects to manipulate to increase her attention; grant I.Q. additional time to submit homework assignments; assist I.Q. with organizational skills; develop a plan for I.Q. to receive feedback from her teachers regarding her organizational skills; and formulate and monitor a plan to help I.Q. remember her homework assignments. (Id.) I.Q.'s parents provided the District with a copy of Dr. Levin's evaluation on November 18, 2014 and again requested a Section 504 Plan. (Id. ¶ 27.)
On December 8, 2014, Plaintiffs met with the District to discuss I.Q.'s eligibility for a Section 504 Plan. (Id. ¶ 28.) Plaintiffs allege that the District decided to decline I.Q. a Section 504 Plan even before the meeting began. (Id.) Most of the attendees at the meeting had not been provided and had not read Dr. Levin's evaluation. (Id.) The only teacher in attendance noted I.Q.'s difficulties with organization which resulted in "significantly lower" grades. (Id.) The District determined that I.Q. did not need a Section 504 Plan because her medications were working and her grades were high. (Id.)
Plaintiffs allege that, to date, the District has not provided I.Q. the accommodations she needs to access her education. (Id.)
Plaintiffs filed this action on December 15, 2014 asserting claims against the District for violations of the ADA, Section 504,
Under Rule 12(b)(1), a defendant may move to dismiss on the grounds that the court lacks subject matter jurisdiction over the dispute. Fed.R.Civ.P. 12(b)(1). The Third Circuit has identified two types of challenges to the court's jurisdiction under Rule 12(b)(1): 1) facial challenges which are based on the legal sufficiency of the claim as pleaded on the face of the complaint, and 2) factual challenges which are based on the sufficiency of jurisdictional facts. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). An attack on subject matter jurisdiction that is based on a lack of administrative exhaustion is a factual challenge, not a facial one. See e.g., Eladawey v. Fed. R.R. Admin., Civ. 13-2976(ES), 2014 WL 4610644, at *2 (D.N.J. Sept. 12, 2014); J.H. ex rel. J.H. v. Egg Harbor Twp. Bd. of Educ., Civ. 08-488(JBS), 2009 WL 1322514, at *2 (D.N.J. May 11, 2009).
"In reviewing a factual attack [as here] the court may consider evidence outside the pleadings." Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000). "In such a situation, `no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Carpet Group Int'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir.2000) (quoting Mortensen, 549 F.2d at 891). "[T]he burden of proving that jurisdiction exists lies with the plaintiff, and `the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 464 (3d Cir. 2013), cert. denied, ___ U.S. ___, 135 S.Ct. 1152, 190 L.Ed.2d 910 (2015) (quoting Mortensen, 549 F.2d at 891).
Defendant argues that this Court lacks subject matter jurisdiction over Plaintiffs' claims because they have failed to exhaust administrative remedies as required under the IDEA. Although Plaintiffs do not assert claims under the IDEA, Defendant nevertheless contends that the IDEA's exhaustion requirement applies because Plaintiffs seek relief which is available under the IDEA, as established by the plain language of the IDEA and binding precedent. Plaintiffs contend in response that the IDEA's exhaustion requirement does not apply because they do not and could not seek relief under the IDEA. Plaintiffs maintain that I.Q. is not disabled and not entitled to special education services under the IDEA as required to be eligible for relief thereunder. In reply, Defendant argues that the IDEA's exhaustion requirement is triggered by the nature of Plaintiffs' claims and the relief sought irrespective of eligibility under the IDEA.
Because determining whether Plaintiffs' claims are subject to the IDEA's exhaustion requirement turns on whether Plaintiffs could have asserted claims under the IDEA, the Court begins with Plaintiffs' argument that I.Q. is not eligible for relief under the IDEA.
20 U.S.C. § 1401(3)(A) (emphasis added). The IDEA defines "other health impairments" as
34 C.F.R. § 300.8(c)(9)(i)-(ii) (emphasis added). The protections of the IDEA are not limited to students with intellectual or learning disabilities and "expressly includes health impairments that limit a student's ability to attend regular classes and which adversely affect his or her educational performance." A.D. v. Haddon Heights Bd. of Educ., Civ. 14-1880(JBS), 90 F.Supp.3d 326, 337, 2015 WL 892643, at *9 (D.N.J. Mar. 2, 2015). Notably, "other health impairments" is explicitly defined under the IDEA to include "attention deficit disorder or attention deficit hyperactivity disorder," the principal disabling condition identified in Plaintiffs' Complaint.
Moreover, "special education" under the IDEA "means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education." 20 U.S.C. § 1401(29). The Third Circuit has noted that the IDEA is written in the conjunctive and coverage thereunder requires a showing that a student is 1) a child with a disability
Here, the present record supports a finding that I.Q. is potentially eligible for coverage under the IDEA and thus could
Because Plaintiffs have not asserted an IDEA claim and the question has not been otherwise presented at this stage, the Court makes no finding as to the merits of any IDEA or IDEA-related claim. The Court, in concluding that Plaintiffs' allegations potentially implicate the protections under the IDEA, merely rejects Plaintiffs' argument that the IDEA is inapplicable to this action due to the nature of I.Q.'s conditions and the services sought. See Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 272 (3d Cir.2014) (noting that plaintiffs are barred "from circumventing [the] IDEA'S exhaustion requirement by taking claims that could have been brought under IDEA and repackaging them as claims under some other statute — e.g., section 1983, section 504 of the Rehabilitation Act, or the ADA").
The cases upon which Plaintiffs rely in support of their contention that exhaustion is only required where the student is eligible for relief under both Section 504 and the IDEA are inapposite and distinguishable. See S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 257-58 (3d Cir.2013) (concluding that IDEA'S reference to "child with a disability" does not include children who are mistakenly identified as disabled and upholding district court's dismissal of IDEA claim); Alboniga v. Sch. Bd. of Broward County Fla., 87 F.Supp.3d 1319, 1328-30, 2015 WL 541751, at *7-8, 2015 U.S. Dist. LEXIS 15832, at *19 (S.D.Fla. Feb. 10, 2015) (finding that exhaustion was not required where plaintiff's
Further, many of the cases Plaintiffs cite followed administrative proceedings, which enabled the courts to rely on developed administrative records in their determination of plaintiffs' eligibility for relief under the IDEA. See Chelsea D. v. Avon Grove Sch. Dist., 2013 WL 3556676, at *8-12, 2013 U.S. Dist. LEXIS 98125, at *24-35 (E.D.Pa. July 15, 2013) (relying on the findings of the hearing officer regarding plaintiffs' alleged disabilities and the need for special education services in evaluating plaintiffs' IDEA claim); S.L. v. Downey Unified Sch. Dist., 2014 WL 934942, at *7 n. 2, 2014 U.S. Dist. LEXIS 30814, at *19-20 n. 2 (C.D.Cal. Mar. 10, 2014) (noting that the school district "determined on multiple occasions that Plaintiff does not qualify for special education services under the IDEA" and that "prior administrative proceedings" provided the district an opportunity to determine whether plaintiff, a student with a seizure disorder which caused her to miss significant class time, was qualified for services under the IDEA); D.R. ex rel. Courtney R. v. Antelope Valley Union High Sch. Dist., 746 F.Supp.2d 1132, 1144-45 (C.D.Cal.2010) (recognizing that plaintiff, a student with impaired mobility due to Charcot-Marie-Tooth Disease, pursued administrative remedies under the IDEA, albeit unsuccessfully, before filing her claims in federal court and finding that plaintiff was not a child with a disability as defined by the
Therefore, the Court must consider whether the exhaustion requirements of the IDEA apply to Plaintiffs' non-IDEA claims.
Defendant argues that this Court lacks subject matter jurisdiction because Plaintiffs failed to exhaust administrative remedies. Plaintiffs contend, in the Complaint and in opposition to the instant motion to dismiss, that they need not exhaust administrative remedies because Section 504 and the ADA do not require exhaustion unless an individual also asserts a claim under the IDEA, which Plaintiffs do not.
This Court recently addressed nearly identical arguments in A.D. v. Haddon Heights Bd. of Educ., Civ. 14-1880(JBS), 90 F.Supp.3d 326, 2015 WL 892643 (D.N.J. Mar. 2, 2015), and will therefore rely on the applicable law as summarized therein.
A.D., 90 F.Supp.3d at 338-39, 2015 WL 892643, at *10-11.
Although Plaintiffs here do not assert a claim under the IDEA, the Third Circuit in Batchelor, found that "[e]xhaustion of the IDEA's administrative process is also required in non-IDEA actions where the plaintiff seeks relief that can be obtained under the IDEA." Batchelor, 759 F.3d at 272. Importantly, Section 1415(l) of the IDEA contains the following rule of construction:
20 U.S.C. § 1415(1) (emphasis added). "This provision bars plaintiffs from circumventing [the] IDEA'S exhaustion requirement by taking claims that could have been brought under IDEA and repackaging them as claims under some other statute — e.g., section 1983, section 504 of the Rehabilitation Act, or the ADA." Batchelor, 759 F.3d at 272 (quoting Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 281 (3d Cir.1996)); see also Hornstine v. Twp. of Moorestown, 263 F.Supp.2d 887, 901-02 (D.N.J.2003) ("[I]n cases in which it appears that a plaintiff has cloaked an IDEA claim as an ADA, Rehabilitation Act, or Section 1983 action in an effort to avoid application of the IDEA'S distinct exhaustion requirement, courts will require that plaintiff to [sic] exhaust the state administrative remedies mandated for IDEA claims.").
As noted by the Court of Appeals in Batchelor, determining whether the IDEA's administrative process must be exhausted before bringing claims in federal court turns on "whether the parties could have asserted the claims under the IDEA" and "whether the claim could have been remedied by the IDEA's administrative process." Batchelor, 759 F.3d at 273. "In other words, claims under Section 504, the ADA, Section 1983, or any state analogue, will require exhaustion, if such claims seek relief `available under the IDEA.'" A.D., 90 F.Supp.3d at 340, 2015 WL 892643, at *11 (quoting Id.).
This Court again finds the Third Circuit's decision in Batchelor instructive.
A.D., 90 F.Supp.3d at 340-41, 2015 WL 892643, at *12.
In the present action, as in Batchelor and A.D., Plaintiffs' claims "palpably relate" to whether Defendant provided I.Q. a FAPE — the principal protection guaranteed by the IDEA. Batchelor, 759 F.3d at 274. Central to Plaintiffs' Complaint are allegations regarding the appropriateness of the education provided I.Q. given her alleged disabilities. As alleged, Plaintiffs first approached Defendant during the 2012-2013 school year "due to concerns about how I.Q.'s disability was affecting her learning and thinking at school and elsewhere." (Compl. ¶ 14.) Plaintiffs contend that, despite being provided with accommodations through an I & RS Plan, I.Q. continued to struggle in school, yet Defendant "refused to acknowledge that ADHD is a disability that is valid, real and affects I.Q.'s learning." (Id. ¶ 19.) Unsatisfied with Defendant's response to Plaintiffs' request for further evaluation and services, Plaintiffs hired Dr. Levin to "determine what services [I.Q.] would need to alleviate her difficulties in school." (Id. ¶ 26.) Dr. Levin's suggested accommodations all relate to I.Q.'s education and her ability to learn. Plaintiffs assert that "[t]o date, I.Q. has not been afforded accommodations and modifications she needs to access her education." (Id. ¶ 28.)
Although Plaintiffs' claims are artfully framed as discrimination claims, in essence they concern whether I.Q. is a student with a disability and whether Defendant acted appropriately in response to Plaintiffs' request for accommodations to ensure I.Q.'s right to a FAPE. Such claims clearly relate to Defendant's obligation to provide a FAPE. As such, Plaintiffs here aim to accomplish what the plain language of the IDEA expressly prohibits, namely the circumvention of the IDEA's exhaustion requirements by "repacking claims that could have been brought under the IDEA and repacking them as claims under some
Defendant properly notes that no exception to the IDEA's exhaustion requirement applies here.
"Plaintiffs need not comply with the IDEA's exhaustion requirements if `exhaustion would be futile or inadequate,' if `the issue presented is purely a legal question,' or if `the administrative agency cannot grant relief.'" A.D., 90 F.Supp.3d at 342, 2015 WL 892643, at *14 (quoting Komninos, 13 F.3d at 778). Although Plaintiffs seek compensatory damages in the instant action, which "are not available under the IDEA and cannot be awarded in the context of a Due Process hearing," Batchelor, 759 F.3d at 276, as in Batchelor, it would be untenable to argue that all of the remedies Plaintiffs seek are unavailable under the IDEA. Id. Plaintiffs also seek compensatory education, an order compelling Defendant to provide I.Q. with an appropriate Section 504 Plan, expert fees, counsel fees and costs, and "any other relief this Court should deem proper and just." (Compl. at 11.) In fact, Plaintiffs' demand for monetary damages is explicitly premised on damage due to Defendant's failure to provide I.Q. with the educational accommodations sought.
Moreover, the court "is not constrained in the relief it is authorized to grant by the remedies sought" in Plaintiffs' Complaint. Batchelor, 759 F.3d at 276. Instead, "`the theory behind the grievance may activate the IDEA'S process, even if the plaintiff wants a form of relief that the IDEA does not supply.'" Id. (quoting Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 992 (7th Cir.1996)). Accordingly, the Court of Appeals in Batchelor expressly rejected the argument that plaintiffs were exempt from the IDEA's exhaustion requirement because they demanded monetary damages in addition to other forms of relief. Id.
Plaintiffs do not and cannot argue that any of the other exceptions to the IDEA's exhaustion requirement as discussed by the Batchelor Court apply to this action. The "implementation exception" does not apply because Plaintiffs do not challenge the implementation of an IEP. Plaintiffs, instead, assert substantive claims for failure to provide a FAPE. Id. at 280. As in Batchelor, the futility exception is inapplicable because Plaintiffs have not previously exhausted the administrative process under the IDEA and the factual record is not fully developed. Accordingly, the `IDEA'S administrative process remains available to remedy the alleged harms. Id. (observing that district courts in this district have applied the futility exception "where the plaintiff had previously exhausted administrative remedies, and where the factual record was sufficiently developed," but declining to excuse exhaustion in the absence of prior administrative proceedings).
In light of the foregoing, the Court concludes that Plaintiffs' claims require exhaustion
