NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 19

- 3771

__________ K. E.; B. E., o/b/o T.E., Appellant

v.
NORTHERN HIGHLANDS REGIONAL BOARD OF EDUCATION

__________ On Appeal from the United States District Court for the District of New Jersey ( D. C. No. 2

- 18

- cv - 12617 ) Honorable Kevin McNulty , U.S. District Judge

__________ Argued September 16, 2020 Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: December 16, 2020 )

Thomas J. O ’ Leary [Argued] Zahire D. Estrella

- Chambers Walsh Pizzi O'Reilly & Falanga Three Gateway Center 100 Mulberry Street, 15th Floor Newark, NJ 07102 Counsel for Appellants James L. Plosia, Jr. [Argued] Jonathan F. Cohen2

Plosia Cohen 385 Route 24 Suite 3G Chester, NJ 07930 Counsel for Appellee

__________ OPINION *

__________

KRAUSE, Circuit Judge

. Having concluded that Northern Highlands Regional High School denied their son, T.E., a free appropriate public education (FAPE) and reasonable accommodations for his
disabilit ies , K.E. and B.E. moved him to a private school and sought tuition reimbursement , claiming violations of the Individual with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400

– 1482, N.J. Admin. Code 6a:14 , 1 an d Section 5 04 of the Rehabilitation Act, 29 U.S.C. § 794

. The administrative law judge ( ALJ ) denied their request, and the District
Court affirmed

. For the reasons set forth below, w e will vacate and remand.
A. Background Throughout elementary and middle school, T.E. thrived academically and socially , requir ing an individualized education program (IEP) only for speech therapy. M idway through eighth grade, however, he required surgery to remove a brain tumor , which caused

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

1 We will not separately analyze the New Jersey special education rules, as the parties do not contend any differences between those rules and the IDEA affect this case.3

his “personality and emotional state ” to become “noticeably different.” JA 4. After he
returned to school in January 2016, he was increasingly bul lied by classmates who stole his personal items and “ma [ d ] e fun of him,” making clear they “did not like him.” JA 5. Over the ensuing months, T.E. was diagnosed with anxiety and depression, and “the severity of the bullying increased.” JA 6. In May, “a studen t picked up T.E. during recess and dropped him, causing him to hit his head on the pavement, which triggered a grand mal seizure,” and in June, “one of T.E’s classmates held a pencil upright on his chair as he sat down, ” which “punctured T.E.’s pants and u nderwear and pierced his anus, causing rectal bleeding.” JA 6. As the abuse escalated, the middle school provided him with one - on - one supervision . Th at supervision, however , did not prevent another student from tackling him during a field day

. Concerned for T.E.’s education and safety the following year, as he would be entering Northern Highlands Regional High School with “the same children who
had bullied him , ” JA 7 , T.E.’s parents began discussions with Northern Highlands about appropriate accommodations. In connection with those discussions, Northern Highlands’ s Rehabilitation Act coordinator met with B.E. and presented a draft Section 504 Plan

. B.E. acknowledge d receipt of this plan by signing it on June 12 and check ing off the lines indicating she received notice of the Section 504 meeting and of T.E.’s Section 504 eligibility and rights, but she declined to check the separate line indicating “agree[ment]
with the Section 504 Plan as written

. ” JA 7. Inste ad, she handwrote her own additional requests for accommodations on another page of the plan

.4

Some weeks later, t he 504 Team sent T.E.’s parents a revised plan that did not incorporate B.E.’s additional requests and that proposed to accommodate T.E.’s disabilit ies and safety risk s by having him “leave class five minutes early

. ” JA 10. T.E.’s parents rejected t h is revised proposal “because it would have required [T.E.] to miss approximately
10% of his instructional time” and “further stigmatize d him.” JA 9 , 10

. T he parents unsuccessfully sought to meet with Northern Highlands’s principal and special services director ahead of the new school year , but only the IEP team was amenable
to further discussions

. At a meeting on July 20 , B.E. and the IEP team agreed that T.E. would be evaluated by Dr. Jane Healey “to understand his cognitive functioning after his brain surgery , ” JA 12 , and before summer’s end, the parents took T.E. to undergo numerous neuropsychology assessments

. As these discussions continued with no clear path to resolution and the start of the
school year approach ing , t he parents informed Northern Highlands they were “investigat ing private

- school placements , ” even recognizing that “the application process for September matriculation had [already] been completed at private schools.” JA 11. One
such option was Dwight

- Englewood , which initially told the middle school principal that , given the late date, “there was no pathway to admission.” JA 10. On July 15, however, Dwight

- Englewood informed the parents it had an opening , but only if the parents signed
the enrollment contract within 24 hours , which , according to the parents, they did “ to secure a safe option for T.E

. ” in case no resolution could be reached with Northern Highlands. JA
11. At their subsequent meeting with the IEP Team, the parents did not mention they had signed this contract.5

On Se ptember 6, with the new school year having started without a ny offer of placement under the IDEA or approved 504 Plan under the Rehabilitation Act , K.E.
informed the Northern Highlands special services director that T.E. would matriculate
instead at Dwight

- Englewood. K.E. also requested, under the circumstances, that the parents and the school “meet as soon as practical to discuss the necessary process for
reimbursement

. ” JA 320. Again, however, t he director declined, replying that the school would only “schedule a meeting with you” “once you send us the results of the neuro psych
evaluation .” Id.
A month into the school year , Dr. Healey completed her evaluation and report , which confirmed that T.E. suffered from anxiety and depression and included diagnoses of traumatic brain injury, seizure activity, ADHD, learning disorder, and coordination
disorder

. Her topline recommendations were that T.E. be educated in “a smaller and
structured school environment” and that he work “with a learning specialist individually” on a regular basis. JA 337

– 38. Nonetheless, when Northern Highlands finally provided the parents with an offer of placement two days after it received the evaluation , the IEP “did not explicitly refer to Dr. Healey’s neuropsychological report” and did not include the “majority of [the report’s 22] recommendations.” JA 18 & n.12. Nor did it “specifically detail the bullying incidents that had occurred” in eighth grade or acknowledge the report’s
conclusi on that “a large public high school will not provide [T.E.] with the level of support he requires” for both “physical and emotional safety reasons.” JA 17

– 18 & n.12. Instead,
the IEP proposed the exact same safet y accommodation as the previously rejected 504
Plan

— that T.E. “[l]eave class 5 minutes early

. ” JA 301

.6

T.E.’s parents rejected this offer of placement, continu ed T.E.’s enrollment at Dwight

- Englewood , and eventually filed a due process petition seeking tuition
reimbursement

. That petit ion did not meet with success. According to the ALJ , who denied it, “both the Section 504 Accommodation Plan signed by B.E. on June 12, 2016,
and the IEP offered .

. . at the October 13, 2016, meeting offered FAPE

. ” JA 70. Notably, however, the ALJ reached t h is conclusion without ever hearing testimony or a rgument on the subject of FAPE, let alone on the adequacy of the specific placement offered by Northern Highlands. Instead, in a series of procedural turnabouts, the ALJ first ruled that the parents failed to comply with the IDEA because they “did not provide timely written notice of their intention to place their son in an out of district school

. ” JA 46

. H e next
scheduled a second hearing , ostensibly to “determin e if reimbursement should be full,
reduced or denied

. ” JA 47

. H e then limited that hearing to the effect of the parents’ alleged failure to provide timely notice, whether the Rehabilitation Act claim was subsumed under the IDEA claim, and whether T.E. was entitled to compensatory education

. A nd when he issued his decision, the ALJ did not address any of th o se issues and instead held that Northern Highlands provided FAPE

. On appeal , the District Court affirmed primarily on the ground that the parents were “not entitled to challenge the district’s proposed IEP , ” JA 36, based on two circumstances
in whic h the IDEA provides that tuition reimbursement “may be reduced or denied , ” 20 U.S.C. § 1412(a)(10)(C)(iii )

— the parents’ failure to provide the re quisite notice and failure
to behave reasonably

. As the District Court interpreted the notice provision, it found dispositive that T.E.’s parents had “unilaterally placed T.E. at Dwight

- Englewood without7

providing the district ten days’ notice of the placement.” JA 36. And as to the reasonableness of the parents’ conduct, although Northern Highlands and T.E.’s parents
had jointly agreed on the expert and the school then declined to meet with the parents or provide an IEP un til that expert finished her report, the District Court laid blame for the school’s delay in proposing an IEP on “the time required for the parents ’ expert to complete
her evaluation and report

. ” JA 35 . It also characterized the parents’ “ongoing discussions with the district” after signing the Dwight

- Englewood enrollment contract as “mask [ing] a fait accompli , ” JA 35 , and took note of the ALJ’s adverse credibility findings

. As to FAPE, which was the basis on which the ALJ had denied reimbursement, the
District Court noted that Dr. Heal e y had provided “twenty

- two recommendations that spanned more than three pages” and that she concluded “that ‘[T.E.] becomes easily
overwhelmed and requires a smaller and structured school environment. Because of physical and emotional safety reasons, a large public high school will not provide [T.E.] with the level of support he requires

. ’” JA 18 n.12 (citation omitted)

. The District Court
al so observed that, notwithstanding these recommendations and conclusions, “[t]he majority of [Dr. Heal e y’s] recommendations were not included in the final IEP,” id. , and that “Northern Highlands did not provide the reasons it used as a basis for disagree ing [with] the request that T.E. be educated at Dwight

- Englewood,” JA 18 n.1 3 . Nonetheless, although it engaged in no independent factfinding, the District Court summarily concluded at the end of its opinion that “[t]he ALJ determined that both the 504 Plan and the IEP provided T.E. with a FAPE” and “[t]he record now before the Court supports that
conclusion.” JA 42.8

Thus, on the alternative bases of the IDEA’s limitation provisions and the offer of FAPE, t he District Court granted Northern Highlands’ s mot ion for summary judgment

. The parents now appeal.
B. Standard of Review
A d istrict c ourt’s summary judgment ruling on an IDEA claim is effectively a ruling
on the administrative record. See Ridley Sch. Dist. v. M.R. , 680 F.3d 260, 26 4 (3d Cir. 2012)

. In reviewing that ruling, we consider de novo “whether the District Court applied the correct legal standards ,” and we review factual findings for clear error. Id. at 2 6 8 (citation omitted)

. For its part, a d istrict c ourt applies a modified de novo standard to the ALJ’s
decision : It review s legal conclusions de novo and giv es the ALJ ’s factual findings “due weight” by treating them as prima facie correct , but the d istrict c ourt ultimately must mak e its own factual findings by a preponderance of the evidence

. Id. (citation omitted)

. Where
the ALJ has determined that the “testimony of one witnes s” is “ contradictory [and that the] testimony of another witness ” is “ more worthy of belief , ” the d istrict c ourt give s that credibility determination “ special weight ” and review s it for clear error. Shore Reg’l High
Sch. Bd. of Educ. v. P.S. , 381 F.3d 194, 199 (3d Cir. 2004)

.9

C. Discussion 2 Here, t he District Court issued a detailed and thoughtful opinion that denied t he parents’ IDEA and Rehabilitation Act claims but that was necessarily premised, in significant part, on findings and conclusions reached by the ALJ . T .E.’s parents argue those findings and conclusions were erroneous , resulting in an erroneous de nial of reimbursement by the District Court

. W e do not opine on whether reimbursement ultimately should be reduced or denied, but we agree that, in light of certain procedural irregularities and erroneous factfinding in the ALJ proceedings and the consequences for the District Court’s application of 20 U.S.C. § 1412(a)(10)(C)(iii) , we cannot be confident
the Court denied reimbursement on a proper basis and thus will remand

. Three concerns animate our conclusion that remand is appropriate. First, it is not
clear if the District Court treated the IDEA’s limitations provisions as discretionary bas e s for reduction or denial of reimbursement , rather than statutory bar s to any recovery

. Second, the District Court’s alternative basis for affirming, the provision of FAPE, was not supported as required by a preponderance of the evidence. And third, the ALJ’s and District Court’s analys e s of the Rehabilitation Act claim rest on a clearly erroneous finding
of fact

. We discuss each point below

. 1. The IDEA’s Equitable Limitations on Tuition Reimbursement As a baseline matter, 20 U.S.C. § 1412(a)(10)(C) pr ovides that , although private school tuition reimbursement is not generally required when parents enroll the ir child in

2 The District Court had jurisdiction under 20 U.S.C. § 1415(i)(2) and supplemental j urisdiction under 28 U.S.C. § 1367, and we have jurisdiction under 28 U.S.C. § 1291

.10

private school without the pub lic agency’s consent or referral , “a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if [it] finds that the agency had not made a [FAPE] available to the child in a timely manner prior to
that enro llment.” 20 U.S.C. § 1412(a)(10)(C)(ii). That reimbursement, however, “ may be
reduced or denied” on the basis of two equitable limitations: (1) if the parents did not give notice that they were rejecting the proposed placement and intending to enroll the child in private school at public expense at least ten days “p rior to the removal of the child from the public school”; or (2) if there is “a judici al finding of unreasonableness with respect to actions taken by the parents.” Id. § 1412(a)(10)(C)(iii )

. While we agree with the District Court the reimbursement claim here is subject to these limitations provisions , 3 we cannot ascertain if the Court app lied them properly. First, the District Court appears to have treated these equitable limitations as statutory bars on any reimbursement, rather than as discretionary bases for reducing or denying reimbursement. See Forest Grove , 557 U.S. at 247 ( holding these provisions give
courts “discretion to re duce the amount of a reimbursement award if the equities so

3 The parents contend the notice provision does not apply to them because it requires T.E. to have “previously received special education and related services,” but his speech therapy counts only as a related service. Appellant Br. 18 (quoting 20 U.S.C. § 1412(a)(10)(C)(ii)) (emphasis omitted). Their argument misunderstands that “related services,” which “assist a child with a disability to benefit from special education ,” 20 U.S.C. § 1401(26)(A), are part and parcel of special education and do not exist apart from that “specially designed instruction,” id. § 1401(29). In any case, the Supreme Court has held the “IDEA authorizes reimbursement .

. . when a school district fails to provide a FAPE .

. . , regardless of whether the child previously received special education or related services,” Forest Grove Sch. Dist. v. T.A. , 557 U.S. 230, 247 (2009), so it is the parents’ entitlement to reimbursement

— not the child’s prior receipt of special education

— that puts the notice provision in play.11

warrant”)

. That is, while the statute speaks in permissive terms

— that reimbursement “may be reduced or denied,” 20 U.S.C. § 1412 (a)(10)(C )(ii i )

— the District Court stated that the parents were “no t entitled to challenge the district’s proposed IEP” as a result of their failure to comply with those provisions, JA 36. Our concern here is reinforced by the fact that the District Court, while conducting a detailed analysis in many other respects, did not acknowledge or address the possibility of a reduction in reimbursement, in lieu of outright
denial. See Forest Grove , 557 U.S. at 247

. Second, both the ALJ and the District Court appear to have faulted the parents for failing to “provid[e] the district ten days’ notice of the placement” at Dwight

- Englewood

. JA 36. The statute, however, requires ten days’ notice of the pare nts’ “reject[ion of] the placement proposed by the public agency to provide a [FAPE] to their child, including .

. . their intent to enroll their child in a private school at public expense

. ” 20 U.S.C. § 1412(a)(10)(C)(iii). That is a distinction with a difference because notice of rejection of the placement proposed by the public agency presupposes that the public agency has , in fact, proposed a placement

. Northern Highlands, however, did not propose a placement until a month after school had commenced. And in that circumstance, a different subsection of the IDEA comes into play: Pursuant to § 1412(a)(10)(C)(iv), the cost of reimbursement “shall not be reduced or denied for failure to provide such notice if , ” among other things, (a) “ the school prevented the parent from providing such notice”; or12

(b) compliance “would likely result in physical harm to the child.” 4 It is not apparent that
the District Court considered whether these provisions were applicable , and to the extent it viewed Northern Highlands’s delay in offering a placement as “largely if not solely attributable to the time required for the parents’ expe rt to complete her evaluation and report,” JA 35, it may not have appreciated that the Northern Highlands IEP team agreed

to engage and also paid for Dr. Heal e y to perform an evaluation before it offered an IEP, knowing that such evaluations “usually [take ] 90 days” to complete, JA 446, and that the
school bears the ultimate responsibility to provide T.E. with a FAPE at or before the commencement of the school year, see 20 U.S.C. § 1414(d)(2)(A) . It is also not apparent
whether the District Court considere d, in light of T.E.’s history of being bullied and assaulted by “the same children who had bullied him,” JA 7, if matriculating him at Northern Highlands in the initial weeks of the school year in the absence of an IEP “would likely result in physical harm,” 20 U.S.C. § 1412(a)(10)(C)(iv)( I ) (cc ) , or “serious emotional harm,” id. § 1412(a)(10)(C)(iv)( II )( bb ), to him

. Third , it is not clear that the District Court’s analysis of reasonableness entirely

c omport s with our case law. We have treated “ a judicial finding of unreasonableness with

4 Section 1412(a)(10)(C)(iv) also precludes reduction or denial of reimbursement if the parents were not provided notice of the notice requirement itself. While the parents raised the argument before the District Court and this Court that they did not receive a copy of the IDEA procedural safeguards in 2016, the ALJ and District Court found that the parents were aware of their right to request reimbursement based on prior years’ copies with which they had been provided. We likewise find this carveout from reimbursement to be inapplicable where the IDEA requires “a copy also shall be given to the parents .

. . upon initial referral or parental request for evaluation,” 20 U.S.C. § 1415(d) (1)(A), as T.E.’s parents did on June 28.13

respect to actions taken by the parents , ” i d. § 1412(a)(10)(C)(iii)(III) , as a n equitable
limitation on reimbursement where the parents’ own delay s and obstruct i ons of the IEP
process “ substantially preclud ed any possibility that the District could timely develop an appropriate IEP” such that the district was “not first giv en
. . . a good faith opportunity to

meet its obligations , ” C.H. v. Cape Henlopen Sch. Dist. , 606 F.3d 59, 71

– 72 (3d Cir. 2010)

. The judicial finding of unreasonableness here rested, in part, on the District Court’s observation, based on the ALJ’s findings, that the parents “categorically refus[ed] to place T.E. at Northern Highlands” at the Oc tober 2016 IEP meeting. JA 35. Specifically, the
District Court noted that “they waited until the October 2016 meeting to reject the IEP in its entirety , informing the [IEP Team] that they did not intend to withdraw T.E. from Dwight

- Englewood

. ” Id. It is difficult to view those facts as proof the parents “precluded .

. . the District [from] timely develop[ing] an appropriate IEP,” C.H ., 606 F.3d at 71, however, given that no draft IEP had been offered to the parents before that meeting,
and the parent s’ attempts to arrange earlier meeting s with Northern Highlands’s special
services director apparently were “rebuffed.” JA 24 n.15.
It may well be , as the District Court found, that “after early July, K.E. and B.E. never truly intended to place T.E. at Northern Highlands.” JA 35. Still, the reasonableness inquiry focuses not on the parents’ subjective intent, but on their actual conduct and its consequences for the timely completion of the evaluation and IEP. See C.H. , 606 F.3d at
71 ; cf. C.G. v. Five Town C mty. Sch

. Dist

. , 513 F.3d 279, 28 8 (1st Cir. 2008) (finding
unreasonableness where “the parents’ actions disrupted the IEP process, stalling its consummation and preventing the development of a final IEP”); Rockwall Indep

. Sch

. Dist

.14

v. M.C. , 816 F.3d 329, 34 0 (5th Cir. 2016) ( finding unreasonableness where the parents “explicitly refused to attend any subsequent meetings ” midway through the IEP process and their communications “reflect[ed] their complete unwillingness to cooperate”). And for that actual conduct to be considered reasonable, parents need not prefer the public
school or enroll their child there when they have a reasonable basis to believe the placement being offered i s inadequate or unsafe

— or, as here, where no IEP has been prepared. Instead, t he Supreme Court has recognized that “parents who disagree with the proposed IEP are faced with a choice: go along with the IEP to the detriment of their child if it turns out to be inappropriate or pay for what they c onsider to be the appropriate placement.” Sch. Comm. of Town of Burlington, Mass. v. Dep ’ t of Educ. of Mass. , 471 U.S. 359, 370 (1985)

. And w here

— as here

— t he parents opt for the latter , a court’s denial
of reimbursement on the ground that they were “intr actable” for “refusing to allow Northern Highlands to implement [the IEP],” JA 35

— i.e. , for refusing to enroll their child in a school they believe unsafe and requiring them to “go along with the IEP ” they believe

“ to be inappropriate,” Burlington , 471 U.S. at 370

— would result in the very kind of “empty victory” the Supreme Court rejected : a decision informing the parents years after the fact

“ that they were right but that these expenditures could not in a proper case be reimbursed by the school officials , ” id

. Other c onsiderations beyond the scope of the reasonableness inquiry may also have
factored into the District Court’s IDEA a nalysis. The draft 504 Plan

— which, as explain ed below, was never approved by the parents

— relates to their Rehabilitation Act clai m, so the
relevance of whether the school was “prevented from [implementing B.E.’s handwritten15

requests] by the parents’ refusal to enroll T.E. at Northern Highlands , ” JA 35, is of questionable relevance

. In any cas e , the revised 504 Plan Northern Highlands proposed did not incorporate her suggestions. 5 Additionally, a ny failure on the parents’ part to provide the notice specified in the IDEA is a n equitable limitation wholly separate from reasonableness under § 1412(a)(10)(C)(iii) , not “an initial hurdle to their claim to have behaved reasonably

. ” JA 33

. It is not clear if the District Court’s unreasonableness finding rested in part on the
ALJ’s criticism of the parents’ tone and demeanor at the hearing. The ALJ made adverse credibility findings, observing that the parents were being “argumentative,” “evasive,” “condescending,” and “spun [] answers to conform to [their] theme, which was [Northern Highlands] did not offer sufficient assurances that T.E. would be safe

. ” 6 JA 66

– 67. T he

5 The District Court’s belief that the revised 504 Plan incorporated B.E.’s suggestions seems to have stemmed from the finding that the school’s offer to “adjust T.E.’s schedule to keep him with friends and away from his aggressors,” JA 40, would be responsive to B.E.’s safety concerns and obviate any need to commit to her suggestions, which the Court dismissed as “vague, conditioned upon T.E.’s presence at school, or both,” JA 39

– 40.

6 Although district courts must accept an ALJ’s determination that “the testimony of one witness [is] more worthy of belief than the contradictory testimony of another witness ” absent “non

- testimonial, extrinsic evidence in the record [that] would justify a contrary conclusion,” Shore Reg’l , 381 F.3d at 19 9 (citation omitted) (emphasis added), the ALJ’s credibility determination here does not appear to have involved the weighing of contradictory testimony. We note, too, that a number of the parents’ answers that arguably fit the ALJ’s description of “argumentative,” “evasive,” and “condescending,” were in response to questioning by Northern Highlands’s attorney that fits that description just as well and went unchecked by the ALJ. See, e.g. , JA 541

– 44 , 560

– 62, 707

– 11, 724

– 26 . Sh ould the District Court decide to conduct a hearing on remand, it will have its own opportunity to make credibility determinations in any event, but as a general16

proper focus of the reasonableness inquiry , however, is not the parents’ conduct in the

cours e of litigation, but their conduct in the course of IEP discussions, i.e. , “in relation to
the fashioning of a FAPE,” JA 33.
R emand is thus appropriate for the District Court to address these considerations
and to apply the equitable limitations consistent with the IDEA and our case law.
2. The Provision of a FAP E Although the District Court suggested the provision of FAPE might also provide a
basis to d eny reimbursement, it correctly identified the significant deficits in the ALJ’s analysis and the inadequacy of the resulting record , which the parties agreed to proceed on without additional discovery in the District Court

. Because we share the Court’s concerns,

we cannot affirm on that alternative ground

. What record there is in this case reflects a series of fits and starts before the ALJ,
who first ruled on the issue of notice , then called for a hearing on whether reimbursement should be “full, reduced or denied,” JA 47, 7 then further restricted the subject of th at

matter, these exchanges highlight the importance of a judge’s enforcement of civility in her c ourtroom, and the downward spiral that can occur in its absence.

7 While the provision of FAPE and the IDEA’s equitable limitations are alternative statutory bases on which reimbursement may be denied, the determination of “whether the IEP afforded the student a FAPE,” which relates to eligibility for reimbursement, appears logically antecedent to the determination of entitlement based on “whether the parents took appropriate actions.” Shore Reg’l , 381 F.3d at 198

– 99. The ALJ flipped these inquiries, treating the parents’ compliance with the notice provision as an eligibility requirement, but the IDEA places the onus on covered schools to “ma[k]e a [FAPE] available to the child in a timely manner prior to [his] enrollment” in private school. 20 U.S.C. § 1412(a)(10)(C)(ii). If the public school has done so, then it enjoys a “safe harbor” from IDEA liability, Forest Grove , 557 U.S. at 241, and there would be no live question whether, as an equitable matter, reimbursement should be “full, reduced or deni ed,” JA 47.17

hearing, and then switched gears again by ruling on the entirely different issue of FAPE. Yet, as the District Court astutely observed, the factual foundation for a ruling on FAPE

was lacking: for unexplained reasons, the “majority of [Dr. Healey’s] recommendations
were not included in the final IEP , ” and “Northern Highlands also did not explain the bases for its disagreement with Dr. Healey’s opinion that ‘a large public high school cannot provide [T.E.] with the level of support he requires.’” JA 18

– 19 n.12

– 13 (second alteration in original)

. In short , the record, as such, is inadequate for meaningful appellate review of the private and public placements at issue under the applicable standard s for a FAPE

. Remand is therefore necessary for the District Court to develop that record to the extent necessary to ensure any finding of FAPE is supported by a preponderance of the evidence. See Ridley , 680 F.3d at 268

– 69; se e also Bedrosian v. United States of Am., Dep’t of the Treasury, IRS , 912 F.3d 144, 153 (3d Cir. 2018) (explaining we cannot review factual findings where “ we are not sure the District Court made [them] based on

. . . the correct legal standar d”)

. 3. Rehabilitation Act Claim Finally, we turn to th e District Court’s denial of the parents’ Rehabilitation Act claim. Like the ALJ, the District Court rejected this claim because it found that “[t]he administrative record leaves little doubt that the parents accepted the district’s 504 Plan.”
JA 39. We cannot agree that the record supports that finding.
The proposed plan itself, as confirmed by B.E.’s testimony, reflects that B.E. signed
and checked only the lines for “I received a written notice of my rights and procedural safeguards under Sectio n 504” and “I received notice of the Section 504 eligibility and18

accommodation s plan meeting , ” and she did not check “I agree with the Section 504 plan
as written

. ” JA 358. Her unrebutted testimony confirms what is made plain by the missing check mark, t he additional requests for accommodations that she handwrote on that version of the 504 Plan, and the fact Northern Highlands proceeded to offer a revised 504 Plan. That is, T.E.’s parents did not accept the 504 Plan. On this record, we are “ left with a definite and firm conviction that a mistake has
been committed.” Shore Reg’l , 381 F.3d at 199 ( citation omitted)

. The District Court’s finding that the parents accepted the 504 Plan on June 12 is clearly erroneous and does not provide an independent basis to reject the Rehabilitation Act c laim. The District Court also
dismissed the Section 504 claim on the basis t hat “in any event, the [504] plan did not discriminate against T.E.,” JA 39, but pointed to little evidence or law to support that finding. On remand, then, the District Court will have the opportunity to address whether
the 504 Plan offered reasonable ac commodations , as well as whether the IEP offered FAPE
for purposes of the IDEA and state law claim s
. D. Conclusion For the foregoing reasons, we will vacate the District Court’s judgment and remand for proceedings consistent with this opinion

.