BK and BK obo SK v Edison Twp BOE | Case 01265-22 | 2022-06-23

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New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 01265-22 AGENCY DKT. NO. 2022-33784 B.K. and B.K. ON BEHALF OF S.K., Petitioners, v. EDISON TOWNSHIP BOARD OF EDUCATION, Respondent. Michael I. Inzelbuch, Esq., for petitioners (Law Office of Michael I . Inzelbuch, attorneys) R. Scott Eveland , Esq. , for respondent (Inglesino, Webster, Wyciskal a & Taylor, LLC, attorneys) Record Closed: May 11, 2022 Decided: June 23, 2022 BEFORE DAVID M. FRITCH, ALJ: STATEMENT OF THE CASE The petitioners, on behalf of their child, S.K., filed a Due Process Petition with the Office of Special Education, Department of Education seeking reimbursement for a unilateral placemen t of S.K . at his present educational program and placement a long

OAL DKT. NO. EDS 01265-2022 2 with continued pl acement and transportation, development of an Individualized Education Program (IEP), and reimbursement of all costs . The respondent, the Edison Township Board of Education (Board), filed a motion fo r summary decision seeking dismissal of the petitioner s’ complaint on the grounds that S.K.’s parents have refused their consent to the Board’s request for evaluations to determine S.K.’s continued eligibility for special educatio n servic es and development of an appropriate IEP while filing for due process claiming the Board failed to provide an appropriate IEP to S.K. PROCEDURAL HISTORY The petitioners filed a Due Process Petition with the Office of Special Education, Department of Education, on January 17, 2022. The respondent filed an answer to the petitioners’ Petition on January 27, 2022. The matter was transmitted t o the Office of Administrative Law (OAL) as a contested case pursuant to N.J.S.A. 52:14B-1 to 15 and N.J.S.A. 52:14f-1 to 13 where it was filed on February 17, 2022. The respondent filed a motion f or summary decision to dismiss the petitioner s’ Petition on March 16, 2022 . The petitioner s’ response t o the motion was received on March 30, 2022 , and the respondent’s reply brief was received on April 21, 2022 . The parties requested oral argument, which was held on May 11, 2022, via the Zoom video teleconfer encing platform, and the record on the motion closed following oral arguments. FACTUAL DISCUSSION Based on th e papers submitted and arguments of counsel and the parties therein, I make the following findings of FACT as uncontested by the parties: 1. S.K. is a fi fteen-year-old child who resides with his mot her (B.K.I), and father (B.K.II), within the geographic parameters of the Edison Township School District (District). (Toohey Cert. at ¶ 3.) 2. S.K. transferred to the District in July 2016, prior to the commencement of the 2016-2017 school year. (Id. at ¶ 4.)

OAL DKT. NO. EDS 01265-2022 3 3. Prior to transf erring to the Dis trict, S.K. attended th e Ra bbi Pesach Raymon Yeshiva. (Id. at ¶ 5.) 4. In August 2016, the District held an annual review meeting for a trans fer student including a reevaluation meeting with proposed evaluations for S.K. (Id. at ¶ 6.) 5. In Septem ber 2016, the District held an IEP m eeting where S.K. was deemed eligible for special education and services under the ca tegory of Other Health Impaired. (Id. at ¶ 7.) 6. The District proposed an IEP for S.K. in September 2016 which inclu ded in-class resource class setting for Language Arts, Math, and Scien ce as well as group speech-language therapy twice a week and group occupational therapy once a week. (Ibid.) 7. S.K.’s par ents unilaterally place d S.K. at the Sinai School (Sinai) at the Joseph Kushner Hebrew Academy in Livingston, New Jersey, for the 2016-2017 school year (id. at ¶ 8) and filed a due process petition in January 2017 seeking reimbursement for the costs of S.K.’s education at Sinai. (Id. at Ex. A.) 8. The January 2017 Due Process Petition was res olved by a se ttlement agreement between the parties entered into in April 2017. (Id. at Ex. B.) a. Under the terms of that ag reement, the District paid fifty -one thousand dollars per year for S.K.’s tuition at Sinai for the 2016 -2017, 2017-2018, and 2018/19 school year s and twelve th ousand d ollars for the petitioner s’ legal costs. (Ibid.) b. S.K.’s parents agreed to waive rights to have t he Di strict prepare or execute an IEP for S.K. for the 2016-2017 school year through the 2018-2019 school year. (Ibid.) c. The agreement provided that the parties would convene an IEP meeting to develop an appropriate placement for S.K. for the 2019 -2020 school ye ar. (Ibid.)

OAL DKT. NO. EDS 01265-2022 4 9. In August 2019, t he parties entered into a nother settlement agreement extending S.K. ’s education al placement at Sina i for the 201 9-2020, and 2020-2021 school years. (Toohey Cert. at Ex. C.) a. Under t he terms of t hat agreement , the District paid up to fifty -eight thousand five hundred dollars per year of non -sectarian tuit ion costs per school year to Sinai for the 2019 -2020 a nd 2020 -2021 sc hool years, which comprised S.K.’s seventh and eighth grades. (Ibid.) b. The agree ment further waived any rights S.K. had for th e District to develop or provide an IEP for S.K. ’s seventh and ei ghth grade education and waived any entitlement to a Free and Appropriate Education (FAPE) from the District while S.K. was attending Sinai. (Ibid.) 10. On July 13, 2021, the petitioners notifie d the District of their i ntent to re - enroll S.K. at Sinai for the 2021-2022 school year and sought reimbursement for S.K.’s continued educational placement at Sinai. (Pet. Br. at Ex. J.) 11. In July 2021, the District contacted the petitioners to s chedule a reevaluation meeting for S.K. ( See Pet. Br. a t Ex. K. ) Due to “conflicting schedules” with the petitioners, the meeting was not scheduled between the parties. (Pet. Br. at 2. See also Wahl Cert. at ¶¶ 5-6; Id. at Ex. C.) 12. In August 2021, the District received the following private evaluations of S.K. from the petitioners : a Neuro-Developmental Assessme nt, dated J une 15, 2021; Speech and Language Testing, dat ed April 16, 2021; and a Psychiatric Evaluation, dated April 21, 2021. (Toohey Cert. at ¶ 14; Wahl Cert. at ¶ 7; B.K. II Cert. at ¶ 19.) 13. At the start of the 202 12022 school year, S.K. remained enrolled at Sinai. (Toohey Cert. at ¶ 13. See also Due Process Petition at 12 ( noting parents have unilaterally placed S.K. at Sinai and seek his continued placement there).) 14. The parties met on November 1, 2021 to discuss S.K.’s educational needs and placement. (Wahl Cert. at ¶¶ 8-11; Toohey Cert. at ¶ 15.) At that meeting, the District proposed that an Educational Evaluation, Occupational Thera py Evaluation,

OAL DKT. NO. EDS 01265-2022 5 Psychological, and Neurodevelopmental Evaluation needed to be conducted to assess S.K.’s present levels and education needs, includ ing S.K.’s continued elig ibility for special education and related services. ( Ibid. See also Wahl Cert. at ¶¶ 17-20; Id. at Ex. G.) 15. On November 4, 2021, B.K. II sent the follow ing email to the District regarding the November 1, 2021 meeting: Thank you for meeting with us on November 1st. I have reviewed what occurred at the meeting, and , again request why the Evaluations we presented were not even reviewed, let a lone accepted, n or was our son ’s educational experience at SINAI discussed. We want to collabor ate with the District b ut to insist that our children be enrolled, makes no sense based on the prior Agreements between the District and ourselves and our previous request to continue at SINAI. I again ask to please explain why you do not accept the Evaluations provided and why you would only talk about program and placement if you could do your own Evaluations. As we did not conduct an OT Evaluation we consent to this Evaluation being completed. [Pet. Br. at Ex. L.] 16. As documented in B.K. II’s November 4, 2021, email to the District ( ibid.) S.K.’s parents provided consent for the Dis trict to perform an Occupational Therapy Evaluation on S.K. ( Id. at ¶ 16. See also Pet. Br. at E x. L; Wahl Cert. at ¶ 22.) This evaluation was performed and a re port produced on January 20, 2022 . ( Toohey Cert. at Ex. D.) 17. S.K.’s parents did not provide consent for the District to perform any other evaluations of S.K. (Wahl Cert. at ¶ 22; Toohey Cert. at ¶ 17.) The District believed that an additional Educational, Psychological, and Neurodevelopmental Evaluation were necessary to fully reevaluate S.K. (Id. at ¶ 18; Wahl Cert. at Ex. G.)

OAL DKT. NO. EDS 01265-2022 6 18. The petitioners filed a Due Pro cess Petition on January 17, 2022, alleging that the Di strict has failed to provide S.K. with a F APE and seeki ng continued out-of- district placement for S.K. (Pet. Br. at Ex. E.) 19. On February 18, 2022, the District held an Eligibility Conference for S.K. (Pet. Br. at Ex. M; Toohey Cert. at ¶ 21.) At that conference, the District found that S.K. was not eligible for special education and related services. (Id. ¶ at 22.) a. The District asserts that it lac ks evidence that S .K.’s disability adversely effects his educational performance such that he requires special education and services. (Id. at ¶ 23; Wahl Cert. at ¶¶ 24-27.) b. At that meeting, t he District r enewed its requ est to conduct a psychological evaluation, functional behavioral an alysis, and review the Sinai School’s comprehens ive student plan fo r the 2019 -2020 and 2020 -2021 school years. (Toohey Cert. at ¶ 23; Wahl Cert. at ¶¶ 27-28.) c. The District received the Sinai School ’s student plan it requested, but did not receive consent to perform the re quested psychological evaluation or functional behavioral assessment of S.K. (Id. at ¶ 24.) 20. At the Feb ruary 202 2 m eeting, the parties reached an agreement to perform a ps ychological evaluation and functional be havioral as sessment on S.K. in February 2022, conditioned upon the parties mutually agreeing to the evaluator being used by the District to perform these evaluations. (B.K.II Cert. at ¶ 3. See also Pet. Br. at 3 (noting consent to eval uations was conditione d upon evaluations being done by “mutually agreed upon evaluators”).) a. The District and S .K.’s parents did not agree on an evaluator to perform these evaluations and the District was not able to perform these evaluations without S.K.’s parents’ consent. (Id. at ¶ 19.) b. S.K.’s parents had their ow n psychol ogical evaluation and behavi oral assessment conducted on S.K. which they provided to the District in February 2022. (Ibid.)

OAL DKT. NO. EDS 01265-2022 7 21. At oral argument on May 11, 2022, the District stated that they still sought a functional behavioral assessment and psychological assessment of S.K. as well as the opportunity to observe S.K. in his current placement. The pa rties orally agreed, on the record, to work towards accommodating the District observing S.K. at his current placement since parental consent was not req uired for that activity and the District will follow up with the Sinai School to set up tha t observation. The parties also agreed to an independent functional behavioral assessment if the District provides names of potential evaluators to conduct this ass essment for the petitioner to select an evaluator to do that assessment and, during oral argument, the parties jointly agreed to an specific evaluator to perform that assessment. The parties also agreed to have a psychological assessment for S.K. performed, conditioned on the District sending two names of pote ntial evaluat ors to the petitioners’ counsel fo r them to pick from for an evaluator to perform the psychological assessment. LEGAL DISCUSSION Summary Decision Standard N.J.A.C. 1:1-15.5 pr ovides t hat summary deci sion sh ould be granted “if th e papers and discovery which have been filed, t ogether with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a ma tter of l aw.” This language is substantially similar to summary judgment under New Jersey C ourt Rule 4:46-2(c). Though not required to do so, the OAL uses the standards for summary judgment, as set forth by the New Jersey Supreme Court, as our standards for summary decision. “[S]ince there are pronounced similarities in the exercise of judicia l and ‘quasi-judicial’ powers, . . . court fashioned doctrines for the handling of litigation do in fact hav e some genuine utility and relevance in administrative proceedings.” City of Hackensack v. Winner, 82 N.J. 1, 29 (1980). It is recognized that the OAL performs many “quasi-judicial” or adjudicative functio ns and that, in doing so, “[j]udicial rules of procedure and practice are transferable to [the OAL] when these are conducive to ensuring fairness, independence, integrity, and efficiency in administrative adjudications.” Matter of Tenure Hearing of Onorev ole, 103 N.J. 548, 554-55 (1986).

OAL DKT. NO. EDS 01265-2022 8 Summary decision is gran ted if, after considering the evidence presented in t he light most favorable to the non -moving party, there exists no genuine issue of m aterial fact. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995). The essential question is “whether the evidence presents a sufficient disagreement to r equire [a hearing] or whether it is so one sided that one party must prevail as a matter of law.” Id. at 533. The Brill Court recognized tha t this necessarily involves the judge in the process of weighing the evidence presented. Id. When determining whether a genuine issue of material fa ct ex ists, “the court should be guided by the s ame e videntiary standard of proof . . . that would apply ” at a hearing. Id. This weighing differs from the weighing th e jud ge would perform af ter a hearing in tha t “on a m otion f or summary [decision] the cou rt must grant all the favorable inferences to t he non-movant.” Id. at 536. It is not the judge ’s function in determining the se motions “to weigh evidence and determine the truth o f the matter but to determine whether there is a genuine issue for trial.” Id. at 540 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). “When a motion for summary d ecision is made and supported, an adverse party in order to prevail must by responding affidavit set forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding.” N.J.A.C. 1:1-12.5(b). “If an advers e party does not so respond, a summary decision, if appropriate, shall be entered.” Id. Following a review of the briefs and submissions of the part ies i n this action, the salient facts of the ca se ar e undisputed and, for the reasons detailed below, I CONCLUDE that, under the Brill standards, this matter is appropriate for summary disposition. The material facts, as set forth by the parties in their respective motions, a re supp orted by tangible, und isputed evi dence and, as detailed below, the petitioners’ motion fails to raise any genuine dispute of the material facts on the record regarding the merits of the respondent ’s motion. LoRusso v. State- Operated Sch. D ist. O f Jerse y City, Essex County , 97 N. J.A.R. 2d (EDU) 5 05, 506 (citing Borough of Franklin Lakes v. Mutzberg , 226 N.J.Super. 46, 57 (App. Div. 1988)). Accordingly, as there are no disputed material facts, the matter is ripe to be deter mined for summary decision.

OAL DKT. NO. EDS 01265-2022 9 Individuals with Disabilities Education Act The Individuals with Disabilities Education Act (IDEA) provides federal funds to assist participating states in educating disabl ed children. Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982). One of purposes of the IDEA is “to ens ure that all children with disabilities have available to them a free appropriate public education that emphasizes speci al education and related services designed to meet their uni que needs and prepare them for further educatio n, e mployment, and independent living.” 20 U.S.C. §1400(d)(1)(A). To qualify for this financial assistance, New Jersey must effectuate procedures t hat ensure that all children with disabilities residing in t he State have available to them a FAPE through a un iquely t ailored individualized education program (IEP) in the least restrictive environment. 20 U.S.C. §§1401(9)(D), 1412(a)(1); Honig v. Doe , 484 U.S. 305, 338 (1988). The responsibility to provide a FA PE rests with the local public school district, which bears the burden of proving that a FAPE has been offered. 20 U.S.C. § 1401(9); N.J.A.C. 6A:14 -1.1(d); N.J.S.A. 18A:46 -1.1; see also G.S. v. Cr anbury Twp. Bd. of Educ. , 2011 U.S. Dist. LEXIS 44933, *6 (D .N.J. 2011) (New Jersey uniquely places the bur den of proof and production on the school district). Before a child with a disability may begin receiving services under the ID EA, “[a] State educational agency, other State agency, or local educational agency shall conduct a full and individual initial evaluation.” 20 U.S.C. § 1414 (a)(1)(A). N.J.A.C. 6A:14-3.4. Subsequent evaluations must be conducted “if conditions warrant a reevaluation or if the child’s parent or teacher requests a reevaluation, but at least onc e every thr ee years.” 20 U.S.C. § 1414(a)(2)(A). N.J.A.C. 6A:14-3.8(a). G.J. v. Muscogee County Sch. Dist., 668 F.3d 1258 , 1263 (11th Cir. 2012). The last District IEP for S.K. was in September 2016 , where S.K. was deemed eligible for special education and services under the category of Other Health Impaired. (Toohey Cert. at ¶ 7.) S.K. has not been reevaluated since September 2016, and has been attending Sinai under a series of settlement agreements between his family and the District covering the 20 16-2017 through 2020-2021 school years. (Toohey Cert. at Ex. B & C.)

OAL DKT. NO. EDS 01265-2022 10 The District has the right, under the IDEA , to have reevaluations necessary to provide S.K. with an adequate IEP per formed by evaluator(s) of the District ’s choosing, and by withholding that consent, the pet itioners improperly interfered with the District’s rights and responsibilities in providing necessary reevaluations to create an adequate IEP for S.K. While S.K .’s parents want him to continue receiving special education s ervices from the District, “if a student ’s parents w ant h im to receive special education under IDEA, they must allow the school itself to reevaluate the student.” Andress v. Cleveland Indep. Schl. Dist., 64 F.3d 176, 178-79 (5th Cir. 1995). G.J., 668 F.3d at 1263. S.K.’s last IEP deeming him eligible for special education and services w as from September 2016 (Toohey Cert. at ¶ 7 ), making his trienni al evaluation for continued special education an d services eligibility d ue in 2019. 20 U.S.C. § 1414(a)( 2)(A); N.J.A.C. 6A:14-3.8(a). As a res ult of set tlement agreements between the parties which alleviated the District of its obligations to provide IEPs for S.K. during his tenure at Sinai, this reassessment process was not addressed until the expiration of those settlement agreements at the start of the 2021 -2022 school year. ( See Toomey Cert. at Ex. B & C.) “Valid and comprehensive evaluation results are required to identify and describe a student’s unique educational needs, and guide the Child Study Team in the design of an IEP.” K.R. v. Jefferson Twp. Bd. of Educ., 20 02 U.S.Dist. L EXIS 13267, *22 -23 (D.N.J. June 25, 2002) . As part of the reassessmen t process, the IEP team must identify what ad ditional data, if any , is needed to determine whether the student continues to have a dis ability, the student’s present levels of academic and functional performance, whether special education and services are n eeded and how they can be appropriately addressed in the student’s IEP, and whether additions or modifications t o the special education and related services ar e n eeded. N. J.A.C. 6A:14 -3.8(b)(2). If additional data is needed, the IEP team must determine w hat additional assessments are needed to make the required determinations for t he student ’s re evaluation. N.J.A.C. 6A:14-3.8(b)(4). The IEP team must also d etermine “which child study team members and/or specialists shall administer tests and other assess ment procedures. ” Id.

OAL DKT. NO. EDS 01265-2022 11 The District’s IEP team determined that the y required assessments to complete S.K.’s re evaluation in November 2021. (Toohey Cert. at ¶ 1 5; Wahl C ert. at Ex. G .) The IEP team sought to conduct assessments an Educational Evaluation, Occupational Therapy Evaluation, a nd Neuro developmental Evaluatio n of S.K. (Ibid.) Prior to conducting any assessm ent, however, the District must obtain p arental consent. N.J.A.C. 6A:14 -3.8(c). If a pare nt withholds consent to the reevaluation, the school district “may, but is no t required to , pursue the reeva luation by using the c onsent override procedures ” in the regulations. G.J., 668 F.3d at 1263 ( citing 34 C.F.R. § 300.300(c)(1)(ii)). See also N.J.A.C. 6A:14-3.4(c). The petitioner s assert that “[a]t no point did the father of S.K. [(B.K.II)] ever refuse any District evaluation, and, in fact, the father agree d to having an Occupational Therapy Evaluation completed by the District. ” (Caplan Cert. at ¶ 14.) B.K.II provided consent on December 9, 2021, for the District to perform an Occupational Therapy Evaluation (Wahl Cert. at ¶ 21), and that evaluation was completed. (Toohey Cert. at Ex. D.) While the petitioner claims t hat S.K.’s parents did not “ever refuse” any of the District’s evaluation requests, th is play on words does not refut e the fact that there is nothing on thi s record to demonstrate that S.K.’s parents ever provided the required consents for the District to perform the remaining requested evaluations of S.K. prior to filing for Due Process in January 2 022. (Toohey Cert at ¶ 18. See also Due Process Petition a t 10 ( documenting B.K.II’s November 4, 2021, email response to Distric t requests for evaluations that he “want[s] to collaborate with the District but [ ] insist[s S.K.] be enrolled” at Sinai consistent with prior agr eements, the District should “accept the Eval uations provided ” by the petitioners , and providing consent on ly for an occupational therapy evaluation ).) The District avers that it has not been able to fully evaluate S.K. because the petitioners have n ever provided consent for the Di strict to perform the necessary evaluations of S.K. and nothing presented by the pet itioners on this record contests the fact that the required consent for the District to conduct these evaluations was not provided by S.K.’s parents prior to S.K.’s parents filing the present Due Process Petition in January 2022. (Toohey Cert. at ¶ 18; Wahl Cert. at ¶¶ 17-20.)

OAL DKT. NO. EDS 01265-2022 12 At a subsequent IEP meeting in February 2022, held a month after the petitioners filed for Due Process, the Distric t renewed its request to conduct evaluat ions of S.K . – seeking consent to conduct a psychol ogical evaluat ion and functional b ehavioral assessment. (Toohey Cert. at ¶ 23; Wahl Cert. at ¶¶ 27-28.) B.K.II asserts that he agreed to allow the Distr ict to cond uct a psychological evaluation and funct ional behavior assessment of S.K. at the February 2022 IEP meeting. (B.K. II Cert. at ¶ 19.) This consent, however, was the product of an agreement between the parties to exchange “names of indi viduals who could po ssibly co mplete the agreed upon Evaluations” leaving the petitioners with the a uthority to approve or disapprove of the District’s proposed evaluators to c onduct these evaluations. (Ibid. See also B.K. II Cert. at Ex. A (February 18, 2022, email from pet itioners’ attorney suggesting two psychologists to perform psychological evaluation) ; Pet. Br. at 3 (no ting parental consent for psychological evaluation and functional behavioral assessment was limited to those completed by “mutually agreed upon evaluato rs”).) The parties also orally agreed on May 11, 2022, to have a psychological evaluation and functional behavioral assessment conducted by mutually agreed upon evaluators. This consent to have “independent” evaluations performed, while reached by mutual agreement of the parties, is not the s ame as providing parental consent to the evaluations originally sought by the District prior to the petitioners filing for Due Process in January 2022 . In conducting a reevalu ation, the District is entitled to “reevaluate [a child] by an expert of its choice.” G.J., 668 F.3d at 1263 (citing M.T.V. v. Dekalb County Schl. Dist., 446 F.3d 1153, 1160 (11th Cir. 2006). As the 11th Circuit has held, parental consent to evaluations, when that consent comes with a “number of conditions appended” is not effective consent where it “vitiate[s] any rights the school district [ha s] under the IDEA for the reevaluation process, such as who is to conduct the interview. ” G.J., 668 F.3d at 1264 -65. More importantly, however , thes e agreements to permit these evaluations to proceed with mutually -agreed upon evaluators were not reached until AFTER the petitioners had filed for Due Process challenging the District’s provision of a FAPE for S.K. for the 2021 -2022 school year , leavi ng the assertion that the petitioners’ parents did not grant consent to have these evaluations performed on S. K.

OAL DKT. NO. EDS 01265-2022 13 to give the District the opportunity to provide S.K. with a proper FAPE prior to filing their Due Process Petition in January 2022 unchallenged. The petitioners providing their own expert reports to the District does not deprive the District of their right s under the IDEA to perform their own reevaluations of S.K. and the District canno t be forced to rely solel y on the petitio ners’ own evaluations in developing an IEP for S.K. The petitioner s contend that they provided “numerous” current evaluations of S.K. to the Di strict and the District, by failing to “consider and/or review ” these evaluations “violates the law (and common sense) in that the Child Stud y Team may treat any such report ‘as [fulfilling] a required assessment. ” (Pet. Br. at 4 -5 ( citing N.J.A.C. 6A:14-3.4).) N.J.A.C. 6A:14-3.4(i) permits third -party reports to be “submitted by the parents to the child study tea m for considera tion” and those rep orts “shall be reviewed and consi dered.” The documents from the November 1, 2021, IEP meeting show that the reports provide d by S.K. ’s parents , including their ne urodevelopmental evaluation (dated 6/15/21) (Pet. Br. at Ex. I) , speech an d language evaluation (dated 4/23/21) (Pet. Br. at Ex . H), psychiatric evaluation ( dated 5/21/21) (Pet. Br. at Ex. G) , and educational evaluation (dated 4/16/21) (Caplan Cert. at Ex. C) were all reviewed by the stu dy team as part of S.K.’s November 1, 2021 , reevaluation by the Distric t. (Caplan Cert. at Ex. D.) While the se parent-provided reports and eva luations “may be u tilized as a required assessment,” N.J.A.C. 6A:14-3.4(i), there is no re quirement that these parent- provided reports mu st be substituted for required assessments i n the reevaluation process nor does the provision of a parent-provided report otherwise deprive the District of its right to conduct its own evaluations under the provi sions of the IDEA . In other words, while the petitioners provided the District with a number of evaluations that they had perfo rmed on S.K. between April and June 2021 (Toohey Cert. at ¶ 14) and in February 2022 ( B.K. II Cert. at ¶ 19), a par ent cannot force a school to r ely solely on their own evaluations . M.T.V., 446 F.3d at 1160 (citing Andress, 64 F.3d at 178 -79; Johnson by J ohnson v. Duneland Sch. Corp. 92 F. 3d 554, 558 (7 th Cir. 1996) ; and Gregory K. v. Longview Schl. Dist., 811 F.2d 1307, 1315 (9th Cir. 1987)); M.S. v. Mullica Twp. B d. of Educ. , 485 F. Supp. 2d 555, 568 ( D.N.J. 2007) . Because the District is

OAL DKT. NO. EDS 01265-2022 14 required to provide S.K. with an education, it is axiomatic that the District has the right to conduct its own evaluation in furtherance of their delivery of t hose mandatory educational services. Johnson by Johnson, 92 F.3d at 5 58. Further, the District noted specific information needed to assess S.K. that was not pr ovided in th e p etitioners’ evaluations. (Wahl Cert. at ¶¶ 24-26 (noting petitioners’ evaluations lack of information on S.K.’s functional performance o r how his disability affects him in the classroom as well as lacks a Behavioral Assessmen t Scale for Chi ldren (BASC) to assess S. K.’s functional behavior in school).) After the end of the settlemen t agreement between the petitioners and the respondent for the 2020-2021 school year (see Toohey Cert. at Ex. C ), the petitioners continued S.K. ’s enrollment at S inai. (Due Process Petition at ¶ T.) The petitioners’ Due Process Petition seeks , in part, to continue S.K. ’s classification and eligibility for special education and related services and contends that the District is unable to offer S.K. a FAPE in-district, requiring S.K. to cont inue his placement at Sinai school, along with transportation and oth er related expenses, at District expense for the 2021 -2022 school year and beyond. (Due Process Petition at 16.) Following the expiration of the last settlement agreement between the pa rties (Toohey Cert. at Ex. C), the District resumed its responsibility for providing S.K. with an appropriate IEP and FAPE. To do so, t he District must conduct a “full and individual initial evaluation” or a ree valuation of S.K. 20 U.S.C. § 1414(a)(1)(A); N.J.A.C. 6A:14- 3.4; 20 U.S.C. § 1414(a)(2)(A); N.J.A.C. 6A:14-3.8(a). In an effort to fulfill its obligations to S.K., the District identified speci fic assessments they determined were needed to determine whether S.K. continues to have a d isability, his present levels of aca demic and f unctional performance, whether speci al education and services are ne eded and how they can be appropriat ely a ddressed in S.K.’s IEP , and whether addi tions or modifications to the special education and related services are needed. N.J.A.C. 6A:14- 3.8(b)(2). See Washington Twp. B d. of Educ. v. H.M. o bo R.M. , OAL Dkt. No. EDS 08328-19, Final Decision (September 9, 2019) , http://lawlibrary.rutgers.edu/oal/search.html (finding that District has legal right to conduct student evaluations as we ll as obligation to conduct the m in an en vironment ensuring the integrity of the te sting process to provide FAPE to a student) . To perform

OAL DKT. NO. EDS 01265-2022 15 these requir ed assessments, however, the District needed the consent of S.K.’s parents. N.J.A.C. 6A:14 -3.8(c). That consent was withheld, denying t he District the opportunity to condu ct its assessm ents of S.K. for the 2021-2022 school year —as S.K.’s parents seek the District to accept their evaluations of S.K. and continue to fund S.K.’s current placement while denying the District the o pportunity to d o its own evaluations of S.K . (Toohey Ex. at ¶ 17. See also Due Process Petition at 10 (documenting B.K.II’s November 4, 2021, email response to District requests for evaluations that he “want[s] to collaborate with the D istrict but [ ] insist [s S.K.] be enrolled” at Sinai consistent with prior agreements and the District should “accept the Evaluations provided” by the petitioners).) While the petitioner s contend that they are “not objectin g to evaluation of their son” and “are willing and eager for that evaluation to take place if needed” (Pet. Br. at 5) this willingnes s to have S.K. evaluated appears to apply exclusively to examinations conducted by selected evaluators of the petitioner’s choosing. The undisputed record in this matter demonstrates that t he petitioners have withheld the necessary consent for the District to conduct evaluations needed to prepare an appropriate IEP for S.K. by evaluators of the District ’s choosing. While the petitioners conten d that the Di strict should not be permitted “to consider only the evaluations it wants to con sider” (Pet. Br. at 5) it is similarly clea r that the petitioners should not be permitted to withhold consent for the District t o co nduct evalua tions and force the District to consider only those evaluations the petitioners want them to consider. (Pet. Br . at 9 (asserting that the evaluations provided by the p arents at the start of the 2021 -2022 school year “were sufficient” for the District to make an eligibility determination of S.K.).) To date, S.K. has undergone a neuro-developmental assessment in June 2021 (Pet. Br. at Ex. I) , speech and language testing in April 202 1 (Pet. Br. at Ex. H ), a psychiatric evaluation in April 202 1 (Pet. Br. at Ex. G) , an occupational therapy evaluation in January 2022 (Toohey Cert. at Ex. D) , a s well as a psychological evaluation and a behavioral assessment conducted after the meeting between the District and S.K.’s parents in February 2022. (B.K. II Cert. at ¶ 19.) With the exception of the occupational therapy evaluation (Toohe y Cert. at Ex. D), none of these assessments were conducted by evaluato rs chosen by the Distric t despite the District’s

OAL DKT. NO. EDS 01265-2022 16 request to conduct additional assessments of S.K. with evaluators of the District’s choice going back to the parties’ meeting on November 1, 2021. (Wahl Cert. at ¶¶ 17- 20; Id. at Ex. G.) As of May 2022, t he parties have further agreed to conduct a second psychological assessment and a functional behavioral assessment of S.K., but even these assessments are cond itioned upon the petitioners first consenting to the evaluators that will be performing the assessments. Despite all the evaluations being conducted on S.K. , the record demonstrates that the District has been c onsistently obstructed from exercising their right to conduct evaluations of S.K. utilizing assessors of their choosing. For example, w hile the District sought permission to con duct a psychological evaluation of S.K. in November 202 1 (Toohey Cert. at ¶ 15), rather than grant the District consent to perform the assessment they sought, S.K .’s parents produced a psyc hological assessment conducted by an evaluator of the ir choosing in February 2022 (B.K. II Cert. at ¶ 19) and subsequently agreed to a second psychological assessment of S.K. to b e conducted by a mutually-agreed upon evaluator. By the time this pro cess is complete, S.K. will have undergone two separate psychological assessments, yet the District will still not have received consent to conduct the psychological assessment they deemed necessary to re -evaluate S.K. and requested consent to conduct back in November 2021. By withholding their consent and denying the District the right to conduct the assessments found necessary by the IEP team by their own evaluators, I CONCLUDE that S.K.’s parents have not cooperated with the District in creating an appropriate IEP for S.K. for the 2021 -2022 school year. See M.T.V., 446 F.3d at 1160 (sc hool districts have the right to condition continued special educ ation services upon a reevaluation by an expert of the district’s choice). As the Third Circui t aptly noted, the requirements of IDEA were not intended to act merely as “a hook on which to h ang a tuition reimbursement claim.” CH. v. Cape Henlopen Sch. Di st., 606 F. 3d 5 9, 70 (3d Cir. 2010). Where parents are found to have unreasonably failed to c ooperate in t he development of an IEP, they may be denied re imbursement for private special education and related servi ces provided during the year where they fa iled to cooperate with the District in providing an appropriate IEP for the school year. M.S., 485 F. Supp. 2d at 568. The respondent presented a request to S.K.’s parents to conduct what t hey believed were necessary assessments to complet e their reevalu ation to furnish S.K.

OAL DKT. NO. EDS 01265-2022 17 with an IEP for the 2021-2022 school year. Beyond asserting that they felt it would be “ridiculous” to put S.K. through further testing and assessments (Due Process Pet. at ¶ J), the petitioners ha ve not identified any harm that would r esult to the st udent fr om such asses sments. While the petitioners assert that the additional t esting of S.K. sought by the District “may very well be unnecessary” in light of the “voluminous testing already completed” on S.K. (Caplan Cert. at ¶ 15), the record reflects petitioners have subsequently subjected S.K. to a psychological assessment and functional behavioral assessment with their chosen evaluators in February 2 022, after the petitioners’ Due Process Petition was filed . ( B.K. II Cert. at ¶ 19.) The parties hav e also agreed to subject S.K. to what will amount to a second psychological and functional behavi oral assessment with evaluators mutually agreed to by the parties. From the record presented, it is clear that the petiti oners’ objections to the additional assessments were not b ased on the propriety or necessity to conduct the assessments, bu t rather on a desire to limit assessments of S.K. to those conducted by evaluators selected by the petitioners. Such conduct serves only to improperly impede the District’s rights under the IDEA to conduct those evaluations with evaluators of their own choosing. M.T.V., 446 F.3d at 1160. The petitioners cannot unreasonably withhold consent from the District to conduct evaluations of a student by evaluators of the Distri ct’s choice a s necessary to create an appropriate IEP for the 202 1/22 school ye ar, while pursuing a due process petition asserting that the Dist rict failed to provide an appropriate IEP and seek ing financial remuneration for a unilateral placement of the student for the same 2021-2022 school year. M.S., 485 F. Supp. 2d at 569. See also C.H., 606 F.3d at 72 ( “The IDEA was not intended to fund priva te school tuition for the children of parents who have not first given the public school a good faith opportunity to meet its obligations”); A.P. and T.F. obo J. F.-P. v. Clifton B d. of Edu c., OAL D kt. No. EDS 07754-09, Final Decision (June 25, 20 10), http://lawlibrary.rutgers.edu/oal/search.html (finding parents’ failure to cooperate in a reevalu ation of st udent gr ounds to deny tuition re imbursement for unilateral placement in private sch ool). Because S.K.’s parents have deprived the District of its opportunity to reevaluate S.K. prior to continuing their unilateral placement of S.K. at Sinai for the 2020-2021 school year with evaluators of the District’s choosing, I CONCLUDE that the pe titioners’ claim for reimbursement of costs for this continued

OAL DKT. NO. EDS 01265-2022 18 placement at S inai without the District having had the opportunity to conduct the necessary evaluations of S.K. must also be denied. ORDER Accordingly, the respondent’s motion for summary d ecision is GRANTED and the petitioners’ January 17, 2022, Due Process Petition is DISMISSED. This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2022) and is appealable by filing a complaint and bringing a civil act ion either in the Law Division of the Superior Court of New Jersey or in a district court of the United States. 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300.516 (2022). If t he parent or adult student feels that this decision is not being fully implemented wit h respect to program or services, this concern should be communicated in writing to the Directo r, Office of Special Education. June 23, 2022 DATE DAVID M. FRITCH, ALJ Date Received at Agency: _June 23, 2022 Date Mailed to Parties: _June 23, 2022 /dw