Bridgewater-Raritan Regional BOE v AM | Case 09656-21 | 2021-12-01

State of New Jersey OFFICE OF ADMINISTRATIVE LAW New Jersey is an Equal Opportunity Employer FINAL DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 09656-21 AGENCY DKT. NO. 2022-33605 BRIDGEWATER-RARITAN REGIONAL BOARD OF EDUCATION, Petitioners, v. A.M., Respondent. ________________________________ David B. Rubin, Esq. for petitioner No appearance by or for respondent Record Closed: December 1, 2021 Decided: December 1, 2021 BEFORE KATHLEEN M. CALEMMO, ALJ: STATEMENT OF THE CASE The p etitioner, Bridgewater-Raritan Regional Boa rd o f Education (the District) , seeks emergent relief to compel A.M.’s consent to a psychiatric evaluation . In accordance with N.J.A.C. 6A:14-2.3, as an adult student, A.M.’s consent is needed for this evaluation to proceed. A.M. has refused to cooperate with the District’s request.

OAL DKT. NO. EDS 09656-21 2 PROCEDURAL HISTORY The District filed a Verified Petition for Due Process and Request for Emergent Relief with the Office of Special Education of the New Jersey Department of Education on November 2 3, 2 021. The District’s emergent relief , as well as its underlying due process claim, is to compel consent for the completion of a psychiatric evaluation by the District at the District’s expense. The emergent matter was transmitted to the Office of Administrat ive Law, (OAL) where it was filed on November 24, 2021, as a contested case. N.J.S.A. 52:14B-1 to B- 15; N.J.S.A. 52:14F-1 to F-13. The parties were notifi ed by the OAL that the emergent request would be heard on November 29, 2021, at 9:30 a.m., via Zoom platform. A.M. was notified of the zoom hearing through his studen t email address . All students enrolled in the Distri ct have an email account assigned by the District. This is the District ’s regular means of contacting its stud ents. When A.M. failed to join the zoom meeting at 9:30 a.m. on November 29, 2021, a reminder email was sent to him by my judicial assistant as well as counsel for the District. My judicial assistant also placed a telephone call to A.M. at the telephone number provided with the transmittal but there was no answer. Counsel for the District represented that he sent a curtesy co py of the petition and notice of the zoom hearing to A.M.’s parents as w ell as forwarding the zoom invitation directly to A.M.’s email address. After waiting fifteen additional minutes, the zoom hearing went forward without A.M. or anyone appearing on his behalf. In accordance with N.J.A.C. 1:6A -12.1(d), an emergent application may proceed without all parties being he ard. A.M. was given proper notice and fai led to reque st an adjournment or to participate in the hearing. I hel d the record open for two days after the hearing to give A.M. an opportunity to take appropriate action. I closed the record on December 1, 2021, after hearing nothing from the absent party.

OAL DKT. NO. EDS 09656-21 3 FACTUAL DISCUSSION For purposes of deciding thi s application f or emergent relief, the following is a summary of the relevant facts derived from the contents of the pe tition and oral argument. Therefore, I FIND the following as FACTS: A.M. is an adult student, born September 23, 2003, enrolled in twelfth grade at Bridgewater-Raritan High School. After a refe rral about the need for additional supports, in June 2021, the Child Study Team (CST) and A.M.’s parents agreed on an evaluation plan what included psychological and educational assessments and a s ocial history that was completed before the start of the 2021-2022 school year. Based on the information available, the CST determined that A.M. was eligible for special education under the disability category “emotional regulation impairment ” and proposed an Individualized Education Plan (IEP). Beginning in September 2021, A.M.’s attendance at school was poor. He made demands for changes in his schedule t o include classes he was ineligible to take due to the lack of prerequisites or insufficient grades. A.M.’s case manager and guidance counselor held numerous meetings with A.M. and his parents to dis cuss his unexcused absences, and to offer options to kee p A.M. engaged with school , including changes to his course schedule . At a meeting on October 12, 2 021, between A.M. and his guidance counselo r to make fin al changes to his course schedule, A.M. became aggressive to the point that the School Resource Offi cers were summon ed for help. It took multiple officers to subdue A.M. before he could be s afely transported to the hospital for observation. A.M. kicked an officer, yelled, and cried during this encounter. A.M. was released from the hospital after a determination that he no longer pr esented an imminent threat of harm to himself or others. The District suspended A.M. for eight days for his aggressive behavior. On October 26, 2021, the Dist rict convened a virtual reentry meeting and presented A.M. with two scheduling choices. This first option was a modified school day. The second option was a f ull school day comprised of his remaining graduation

OAL DKT. NO. EDS 09656-21 4 requirements and electives. However, the District also informed A.M. and A.M.’s father that it needed communication with A.M.’s mental treatment providers and required that A.M. submit to a psychiatric evaluation. A.M.’s behavior at this meeting was disruptive and verbally aggressive. The day after the re entry meeting, A.M. returned to school. On November 3, 2021, A.M. was scheduled to report to the sc hool psychologist for his school -based counselling under his IEP. A.M. believed this was an attempt to evaluate him without consent. He exhibited irrational behavior and made additional demands for further changes to his courses. A.M. has only attended two counselling sessions since the start of the school year. A.M.’s emotiona l instability and physical aggression in s chool are cause for concern. Because the staff has been prevented from communicating with A.M.’s mental health providers, the staff is not fully aware of A.M.’s current level of functi oning. The lack of cooperati on with A.M. and his parents in sharing information prevents the CST from fully understanding A.M.’s current condition and educational needs. Since the start of the s chool year, A.M. has exhibited school avoidance , aggressive outbursts, and obstructive behavior. Without A.M.’s cooperation the District has no mean s to fully eva luate A.M. to implement a plan to address these escalating concerns. The District filed this request for emergent relief seeking an order to con duct the psychiatric evaluation. They argue that this evaluation is warranted by the behaviors exhibited by A.M. since the start of th e school year. Neither A.M. nor anyone on his behalf objected to this request for emergent relief. LEGAL ANALYSIS AND CONCLUSION By regulation an affected parent(s), guardian, board, or public agency may apply in writing for emergency relief. The application must set forth the specific relief sought

OAL DKT. NO. EDS 09656-21 5 and the specific circumstances which they contend justify the requested relief. N.J.A.C. 1:6A-12.1(a). Emergent relief shall only be requested for the following issues pursuant to N.J.A.C. 6A:14-2.7(r): i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, including manifestation determinations and deter minations of interim alternate educational settings; iii. Issues concerning placement pending the outco me of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. Herein, the District relied on the foll owing circumstances as justification for emergent relief. After an eight-day suspension for aggressive behavior , including an assault of a police officer, a virtual reentry meeting was held, and the District ’s requirements were made known. The District emphasized its need to communicate with A.M.’s mental health prov iders and schedule a psychiatric evalu ation for A.M.’s safety and the safety of the staff . At the virtual meeting, A.M. became verbally abusive and disruptive, requiring his removal from further participation. Without an agreement for the evaluation, A.M. returned to school and continued to exhibit emotional instability and ph ysical aggression . His behavior is cau se for concern. A.M.’s refusal to submit to the psychiatric evaluation denies the Dist rict the tools it needs to impose appropriate discipline for his disruptive beh avior and aggression. It further limit s the District ’s ability to i mplement needed safeguards for A.M.’s safety and the safety of the staff and to formulate appropriate educati onal programming. The District has de monstrated that its request for a p sychiatric evaluation has disciplinary implications given A.M. ’s disability of “emotional regulation impairment.” The District has also demonstrated that there are issues involving a break in delivery of services because of A.M. ’s school avoidance and the District’s inability to

OAL DKT. NO. EDS 09656-21 6 understand A.M.’s current condition and educational needs. Therefore, I CONCLUDE that this matter satisfies N.J.A.C. 6A:14 -2.7(r)(1) and is an appropriate requ est for emergent relief. Emergent relief may be granted pursuant to N.J.A.C. 1:6A -12.1(e) and N.J.A.C. 6A:14-2.7(s)(1), if the judge determines from the proofs tha t the following conditions have been established: i. The petitioner will suffer irreparable harm if the requested relief is not granted; ii. The legal right underlying the petitioner’s claim is settled; iii. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and iv. When the equities and interest s of the parties are balanced, the pet itioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. N.J.S.A. 6A:14-2.7(s); Crowe v. DeGioia, 90 N.J. 126 (1982), codified at N.J.A.C. 6A:3 - 1.6(b). The petitioner bears the burden of satisfyi ng all fou r prongs of this test. Crowe, 90 N.J. at 132 -34. First, the petitioner must demonstrate irreparable harm will o ccur if the District is not allowed to conduct a psychiatric evaluation of A.M. Harm is irreparable when there is no adequate after-the-fact remedy in law or in equity; or where monetary damages cannot adequately restore a lost experience. Crowe, 90 N.J. at 132-133; Nabel v Board of Education of Hazlet , EDU 8026 -09, Final Decision on Application for Emergent Relief (June 24, 2009). Here, the re is an assertion involving a break in services due to A.M.’s school avoidance and missed time due to his disciplinary suspension. Additionally, both the District and A.M. face the potential of irrepa rable harm by th e continued delay in allowing the District to meet its obligations to A.M. to provide him w ith all appropriate

OAL DKT. NO. EDS 09656-21 7 evaluations to meet his educational and emotional needs . Without a proper psychiatric evaluation to support A.M.’s behavior needs, the District’s efforts to provide A.M. with an appropriate educational and behavioral plan is impaired with safety implications for A.M. and the District’s staff . Gloucester City Board of Education v. A.H. o/ b/o K.S. , EDS 09165-15, Final Decision, (July 14, 2015 ) http://lawlibrary.rutgers.edu/oal/search.html (finding failure to comply with IDEA regulati ons puts student at risk because “ any lapse in special services may well cause the child to regress”); Haddonfield Borough Board of Education v . S.J.B. o /b/o J.B. , EDS 0 2441-04, Final Decision, (May 20, 2004) , http://lawlibrary.rutgers.edu/ oal/search.html, (finding ir reparable harm to studen t and school district where there is a delay in the District’s continu ed ability to provide a n appropriate education due to parents withholding consent to IEP assessments). The District must ensure that it is providing a safe environment for all its students, including A.M., and its staff. To meet this obligation, the District is seeking to conduct a psychiatr ic evaluat ion of A.M. , who ha s a documented history of school avoidance, disruptive behavioral outbursts , and a ggression. Given the gravity of the circumstances, the District has shown that there is an urgent need to conduct this evaluation. Therefore, I CONCLUDE that the District has met its burden of establishing a clear showing of immediate irreparable injury unless the requested relief is granted. Second, the Dis trict must demonstrate it has a settled legal rig ht to the relief requested. According to N.J.A.C. 6A:14-3.3(a), a di strict board of education has a n obligation to locate, refer, and identify student s who may have disabilities due to physical, sensory, emotional, communication, cognitive, or social diff iculties. Thereafter, a stud ent may be referred to the child study t eam for an evaluation to determine eligibility for special edu cation programs and services. N.J.A.C. 6A:14- 3.3(e). If the child study team determines that an evaluation is warranted, th e district must request and obtain consent to evaluate. N.J.A.C. 6A:14-3.4(b). Here, the District was presented with a student with a diagnosis of “emotional regulation impairment” who has demonstrable behavioral deficiencies and aggression. The Dist rict appropriately reached out to A.M.’s parents and A.M. to r equest this necessary testing. A.M. refused the District’s request but continues to attend school .

OAL DKT. NO. EDS 09656-21 8 The District has a well -settled right to complete an evaluation plan, including a psychiatric evaluation to assess A.M.’s emotional and behavior needs for appropriate services and placement. Accordingly, I CONCLUDE that the District h as met the second prong of the emergent relief standard in that the legal right underlying its claim is well settled. In evaluating the petitioner’s l ikelihood of prevailing on the m erits of their underlying claim, there a re no mate rial facts in dispute in this matter which oppose the petitioner’s likelihood of success. Th ere is significant precedent t o support the granting of requests by school distri cts for emergent relief to compel parental cooperation in the IEP evaluation process. See, e.g., Millville Board of Education v. S.L. o/b/o Z.B. , EDS 15556-18, Final Decision, (November 5, 2018) http://lawlibrary.rutgers.edu/oal/ search.html; Washington Township Board of Educa tion v. C .L. and A.L. o/b/o N.L. , EDS 06855 -17, F inal Decis ion, (May 22, 2017) http://lawlibrary.rutgers.edu/oal/ search.html; Edison Township Board of Education v. M.B. and P.B. o/ b/o M.B , EDS 2319-07, Final Decision, (April 11, 20 07) http://lawlibrary.rutgers.edu/oal/search.html; Lawrence Township Bo ard of Edu cation v. D.F. o/b/o D.F ., EDS 12056 -06, Final Decision, (January 5, 2007) http://lawlibrary.rutgers.edu/oal/search.html; Trenton Board of Education v. S.P. o/b/o B.P , Final Decision, EDS 874 -01, (March 23, 2001) http://lawlibrary.rutgers.edu/oal/search.html. As applied here, I CONCLUDE that the petitioner has demonstrated a likelihood of prevailing on the merits. The final prong of the test the District must satisfy is to demonstrate it will suffer greater harm than the respondent student if the relief is not granted. This is shown by a balancing of the equities and int erests of the parties. Here, if the District’s requ ested relief is granted, A.M. will be subjected to a psychiatric evaluation which would serve as the basis for decisions to ensure that his academic and emotional needs are met. In contrast, neither the adult st udent nor his parents have presented any evi dence or indication that the student will b e harmed if compelled to submit to a p sychiatric evaluation. While this issue remains unaddressed , A.M.’s behaviors continue causing self-inflicted irreparable harm. It is the defiant behavior by A.M. that resul ted in the scales being tipped to the District suffe ring greater harm if t he student is not compelled

OAL DKT. NO. EDS 09656-21 9 to submit to a psychiatric evaluation. I CONCLUDE that the District has demonstrated it will suffer greater harm than the respondent if the emergent relief is not granted. The District has met the four con ditions set forth in Crowe and as codified in N.J.A.C. 6A:3-1.6(b). Therefore, I CONCLUDE that the District is entitled to emergent relief compelling A.M. to submit to a psychiatric evaluation. ORDER It is ORDERED that the emergent relief requested by the District authorizing it to proceed with a psychiatric evaluation of A.M. by a physician selected by th e District is GRANTED. This decision on application for emergency relief resolves all the issues raised in the due process complaint; th erefore, no further proceedings i n this matter are necessary. This decision on application for emergency relief is final pur suant to 20 U.S.C. § 1415(i)(1)(A) and is appealable by filing a complaint and bringing a civil action either in the Law Division o f the Superior Court of New Jerse y or in a District Cour t of the United States. 20 U.S.C. § 14 15(i)(2). If the parent or ad ult student feels that this decision is not being fully implemented with respect to program or services, this concern should be com municated in writing to the Direc tor, Office of Special Education Programs. December 1, 2021 DATE KATHLEEN M. CALEMMO, ALJ Date Received at Agency Date Mailed to Parties: KMC/tat