Berkeley Twp BOE v SH obo BM | Case 03832-22 | 2022-05-20

New Jersey Is An Equal Opportunity Employer ORDER ON EMERGENT RELIEF OAL DKT. NO. EDS 03832-22 AGENCY DKT. NO. 2022-34285 BERKELEY TOWNSHIP BOARD OF EDUCATION, Petitioner, v. S.H. on behalf of B.M., Respondent. __________________________________________ Michael A. Pattanite, Jr. , for petitioner (Lenox, Socey, Formidoni, Giordano, Cooley, Lang, & Casey, LLC, attorneys) S.H. on behalf of B.M., respondent, pro se BEFORE SUSAN L. OLGIATI, ALJ: STATEMENT OF THE CASE Petitioner, Berkeley Township Board of Education ( the district), seeks an order placing student B.M. in an inter im alternative placement of home instruction , due to dangerousness, pending outcome of the underlying due process petition. Th e district also seeks an o rder compelling consent to the release of student records to out-of- district educational institutions for consideration of potential placement.1 Respondent, 1 This r equest relates to the underlying due process petition and therefore is not addressed in this emergent order.

OAL DKT. NO. EDS 03832-22 2 S.H., mother of B.M., opposes the interim alternative placement of home instruction and contends that B.M. needs to be in school. PROCEDURAL HISTORY On or about May 12, 2022, the district submitted an emergent request and a due process petition to the New Jersey Department of Education, Office of Special Education (OSE). The OSE transmitted the emergent request to t he Office of Administrative L aw (OAL), where it was filed on May 12, 2022, to be heard as an emergent contested matter.2 Oral argument on the e mergent matter was scheduled for May 16, 2022. The proceeding was scheduled via Zoom remote video platform due to ongoing restrictions relating to the COVID pandemic. At t he start of the proceeding, S.H. requeste d an adjournment to consult with /retain legal counsel. As a result, the m atter was rescheduled for May 1 9, 2022 . On May 19, 2022, petiti oner advised that s he was unable to obtain counsel on short notice. Oral argument was held on this date desp ite S.H.’s lack of representation. FACTUAL DISCUSSION AND FINDINGS The following was not disputed and/or, based upon the written submission of the district and video of the April 28, 2022, incident, found by me as FACT: Respondent S.H. is the mother and guardian of B.M. B.M. is currently ten years old. He was born in August 2011. He is in the fourth grade and resides with his mother in Bayville, New Jersey. 2 The district captioned its filing as a “Petition for Emergent Relief, Expedited Hearing, and Due Process.” The due process petition was transmitted to th e OAL for hearing along with the request for emergent relief. However, the due process petition was not transmitted as an expedited matter.

OAL DKT. NO. EDS 03832-22 3 B.M. came to the district in February 2022. Prior to this, B.M. attended school in Texas. Based on a 2020 Texas individualized education program ( IEP), B.M. was deemed eligible to r eceive special education and related serv ices in the d isability category of “emotional disturbance.” See Exhibit B, Texas IEP, at 3. On M arch 3, 2022, the district ’s child study team (t eam) held a n evaluation planning meeting. B.M. was deemed eligible for special education and related services under the classification of “emotional regulation impairment.” He was placed in general education classes at Clara B. Worth Elementary School with pull-out instruc tion in reading and math. See Exhibit C, evaluation planning documents; Exhibit D, April 11, 2022, IEP. On March 24, 2022 , B.M. was suspended from s chool for assaulting a school staff member. See Exhibit E, Administrative Hearing Documents and I ncident Reports, at March 31, 2022, letter. Witness statements and the incident report reflect that on this date, B.M., among other things , hit, kicked, and spa t i n the face of principal Kevin Waldron. He also attempted to punch Principal Waldron in the leg and groin multiple times. See Exhibit E. Thereafter, B.M.’s IEP was revised to chang e his placement to a self-contained emotional-regulation-impairment class in Berkeley Township Elementary Schoo l due to a pattern of behaviors that were unsafe to himself and others. See Exhibit D. On April 28, 2022, B.M. was involved in another incident involving an assault on district staff. See Exhibit F, April 28, 2022, Incident Report including witness statements and photographs; Exhibit I, school surveillance video of April 28, 2022. The vid eo of the April 28, 2022, incident contains no sound but shows B.M. running behind a female staff member and swatting at and slapping/hitting her on the head. Principal Daniel Prima and another male staff member responded to the situation. B.M. continued to swat at, stri ke, and attempt to s trike the staff members. Principal Prima physically restrained B.M., in what appears to be an attempt to prevent B.M. from harming himself and the staff, and brought him down to the ground. The

OAL DKT. NO. EDS 03832-22 4 male staff member assisted with the rest raint of B.M. while he was on the ground. The female staff member remained next to B. M. and attempted to calm him. The restraint took approximately twenty-five minutes to deescalate. See Exhibit F; Exhibit I. During the incident, B.M. continued to hit and attempt to hit staff members. He also repeatedly kicked, head butted, and bit Principal Prima. Ibid. As a result of this incident, B.M. was suspended effective April 28, 2022, through May 6, 2022. Exhibit F. On May 6, 2022 , the team held a manifestation determination meeting . See Exhibit G . The team determined that B.M.’s actions on April 28, 2022 , were a manifestation of his disability, but were not caused by the district’s failure to follow the student’s current IEP. The team further determined that B.M.’s IEP needed to be amended to all ow for an out -of-district placement i n an appropriate supporti ve placement. Ibid.; see also Exhibit A. S.H. did not consent to the proposed out-of-district placement and did not consent to the release of records for consideration of a possible out-of-district placement. See Exhibit F. The district specific ally s ought consent to release B.M.’s student records to Coastal Learning Center i n Howell, N.J., and Ocean Academy in Lakewood, N.J. See Exhibit H. During the period of suspension resulting from the April 28, 2022, incident, home instruction was offered to B.M. by the district at school, during after-school hours. B. M. attended only one session of home instruction because S.H. contended that the offered instruction conflicted with her work schedule. Arguments of the Parties The district argues that it wil l suffer immediate and irr eparable harm if B.M. is returned to school in t he district, as he has engaged in repeated physical assaults on staff. It contends that it cannot appropriately address B.M.’s behaviors and that he presents a danger to himself, other students, staff, and the educational environment.

OAL DKT. NO. EDS 03832-22 5 Respondent opposes the interim placement of home instruction. S.H. contends that one to two hours of daily home instruction is not appropriate for B.M. and that he has already missed many days of school. In early May S.H. sent an email to the district advising that she intended to invoke to her right to “stay put. ” However, at oral argument on May 19, 2022, S.H. advised that she no longer wishe d to invoke stay put because she no longer beli eves tha t placement in the district is appropriate f or B.M. She does not agree with the district ’s recommendation fo r placement in a behavioral program. She further argues that the district failed to properly implement B.M.’s IEP and behavioral intervention plan. LEGAL ANALYSIS In special education matter s, e mergent relief shall only be requ ested for the following issues: i. Issues involving a break in the delivery of services; ii. Issues involving disciplina ry action, including manifestation d eterminations and determinati ons of interim alternate educational settings; iii. Issues concerning placement pending the outcome of due process proceedings; and iv. Issues involvi ng graduation or part icipation in graduation ceremonies. [N.J.A.C. 6A:14-2.7(r)(1).] Here, the district seeks emergent relief relating to issues concerning placement, including interim alternative educational setting s, pending the outco me of the due process proceedings. Accordingly, I CONCLUDE that the district’s reque st fo r emergent reli ef is consist ent with N.J.A.C. 6A:14 -2.7(r)(1)(ii) and (iii) and is therefore appropriate for consideration herein.

OAL DKT. NO. EDS 03832-22 6 Under Crowe v. De Gioia , 90 N.J. 126 , 132 –35 (1982), and N.J.A.C. 1:6A - 12.1(e), emergency relief may be grante d if the judge determines from the proofs that each of the following elements have been established: i. The petitioner will suffer irreparable harm i f the requested relief is not granted; ii. The legal right u nderlying the petitioner’s claim is settled; iii. The petitioner has a likelihood of pr evailing o n the merits of the underlying claim; and iv. When th e equities and interests of the parti es are balanced, the petiti oner wi ll suffer greater harm than the respondent will suffer if the requested relief is not granted. The moving party must satisfy all four prongs of this standard to establish an entitlement to emergent relief. As to the first prong of the standard for emergent relief, the district asserts that it will suffer irreparable ha rm if its requested relief is n ot granted. Here, B.M. has bee n involved in at least two incidents since his February 2022 tran sfer to the district that resulted in his suspension from sc hool due to acts of physical aggression/assault of district staff. His behaviors during t hese incid ents included, but were not lim ited to , slapping, hitting, punching, kic king, biting, and spitting. These b ehaviors not only harmed staff members but continue to pose a risk to the o ther students, to teachers, and to B.M. himself. The district contends that it is unable to appropriate ly address B.M.’s behaviors. Accordingly, I CONCLUDE that the district has demonstrated irreparable harm to its staff, to its students, to the educational environment, and to B.M. himself if he were to return t o school in the di strict rather than the interim alternative placement of home instruction. As to the second and third prongs of the standard for emergent relief , the district asserts that its r ight to educate a student in the least restrictive environme nt is w ell

OAL DKT. NO. EDS 03832-22 7 settled and that B.M. must be educated in an out-of-district placement that can support his behavioral needs while providing him wi th an appropriate education. Additionally, the district contends that based on the record in this matter , there is a re asonable probability of its success on the merits. The district is required to educate all students, and provide a free appropriate public education pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., and the New Jersey Admi nistrative Code fo r Special E ducation, N.J.A.C. 6A:14, et seq. When determining t he least restrictive environment, consideration must b e given to the “potentially benefi cial or harmful effects which a placement may have on the student with disabilities or the other students in the cl ass.” N.J.A.C. 6A:14-4.2(a)(8)(iii). Additionally, N.J.A.C. 6A:14-2.7(n) provides a mechanism to remove a student with a disability when district board of education personnel maintain that it is dangerous for the student to be in the cur rent p lacement and the district and the parent can not agree on an appropriate placement. In these situations, an administrative la w judge may order a cha nge in placement for not mor e than forty-five calendar days acc ording to the provisions of 20 U.S.C. § 1415(k) and its implementing regulations. Accordingly, I CONCLUDE that the district has demonstrated that the legal right underlying its due process claim is settled, and that there is a likelihood of prevailing on the merits of the underlying claim for an out-of-district placement. As to the fourth prong of the standard for emergent relie f, the district argues that a balancing of the hardsh ips to the parties demonstrates that i t must be gra nted the interim alternative placement because B.M.’s beha viors present a dan ger t o himself, other students, staff, and the educational environment. S.H. argues that home instruction is not appropriate f or B.M. and that he nee ds to be in school . She gave so mewhat conflicting testimony regarding being unable to bring B.M. to home instruction because it conflicted with her work schedule, and having missed work due to being at home with B.M. during his suspension. She initially

OAL DKT. NO. EDS 03832-22 8 contended that due to work she was unable to be home during the day when hom e instruction was offered, and that she could not bring B.M. to home instruction offered at school during after-school hours until after 4:00 p.m. At oral argument on Ma y 19, 2022, the district confirmed that it could provide home i nstruction to B.M. at his home at/after 4:00 p.m. Having c onsidered the equi ties and inte rests of the parties, I CONCLUDE that the district has demonstrated that it, and indeed B.M., will suffer greater harm if he is not placed in the interim al ternative placement of home inst ruction pending the outcome of the underlying due process action. S.H. now agrees that B.M.’s current placement is not appropriate and that he requires an out-of-district pl acement. However, S.H. disagrees with the potential pla cements recommended by the district and has not consented to the release of B.M.’s records to explore possible out-of-district placement. B.M. has been suspen ded since April 28, 2022 , and has attended o nly one session of home instruction offered by the district. He needs to begin receiving instruction. Based on the above, I further CONCLUDE that the district has satisfied all four prongs of the standard for emergent reli ef and that its requ est to place B.M. in the interim alternative placemen t of home instruction pending the o utcome of the due process petition should be granted. ORDER It is ORDERED that the district’s request for emergent relief to place B.M. in an interim al ternative place ment of home instruction, pending outcome of the underlyin g due process petition, is GRANTED. Consistent with my oral ruling placed on the record on May 19, 2022, the district shall provide B.M. with home instruction beginning on May 23, 2022, starting at 4:45 p.m., as agreed by the parties. The home instruction shall occur in B.M.’s h ome and be prov ided by a teacher along wi th a beha viorist. Home instruction shall be provided f or one to two hours, Monday through Friday , as B.M. is able to tolerate. The dates and times of the ordered home instruction may be modified by the mutual written agreement of the parties, or if the di strict demonstrates that it is unsafe to continue with same in B.M.’s home.

OAL DKT. NO. EDS 03832-22 9 This order on application for emergency relief shall remain in effect until issuance of the final decision in the matter. A conference call is scheduled for May 26, 2022, at 4:00 p.m., or, alternatively, June 1, 2022, at 4:00 p.m., to schedule hearing dates and establish a pre-hearing order for the due process petition.3 If the parent or adult student feels that t his decision is not being fully implement ed with resp ect to prog ram or services, this concern should be communicated in writing to the Directo r, Office of Special Education. May 20, 2022 DATE SUSAN L. OLGIATI, ALJ Date Received at Agency Date Mailed to Parties: SLO/as 3 Alternate dates were pro vided to the parties because S.H. advised that she was me eting with counsel on Monday May 23 , 2022, for possible retention . S.H. was advised to have counsel retained by her, if any, to file a letter of representation with the OAL.