BS and AS obo AS v Lebanon Twp BOE Docket Number 03829-21 | Case 03829-21 | 2021-08-26

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW ORDER DENYING EMERGENT RELIEF OAL DKT. NO. EDS 03829-21 AGENCY DKT. NO. 2021-32674 B.S. and A.S. ON BEHALF OF A.S., Petitioners, v. LEBANON TOWNSHIP BOARD OF EDUCATION, Respondent. John C. Vermitsky , Esq., for petitioners (Morrow Porter Vermitsky & Taylor , PLLC, attorneys) Rita F. Barone, Esq., for respondent (Flanagan Barone O’Brien, attorneys) BEFORE DAVID M. FRITCH, ALJ: STATEMENT OF THE CASE The petitioners, B.S. and A.S., filed a due process petition in April 2021 seeking, among other remedies, the establ ishment and funding of a “compensatory education fund” to be directed by the petitioners and funded by the respondent to p rovide educational opportunities for their son, A.S. , as well as “to compensate his parents for their expended and opportunity costs including, inter alia, transportation, educational,

OAL DKT. NO. EDS 03829-21 2 occupational therapy, speech therapy, behavioral therapy, and private i nstruction costs, parents’ employment losses, and re imbursement for personal time Parents have spent providing [A.S. ’] education. ” (Pet. Due Process filing at 2.) The petitioner s file d the present petition for emergent relief in August 2021, seeking in-home instruction, therapy services, and other relief for their minor child A.S. from the respondent, the Lebanon Township Board of Education (BOE) during the pendenc y of their underlying due process petition. Due to the multiple medical conditions A.S. has been diagnosed with, the petitioners assert that the provision of these in -home educational s ervices requires the respondent to also provide paraprofessional care to A.S. to supplement his in-home learning and therapeutic environment. Although the respon dent has offered to provide the requested in -home education and therapy services as well as the services of a registered nurse to serve as a paraprofessional to assist A.S. in the in -home learning environment and ther apy, the petitioners contend that “the only pe rson cap able of providing the medically necessary paraprofessional services for an effective administration of FAPE [(Free Appropriate Public Education)] is the minor child ’s mother, A.S.” (Mother). (Pet. Br. at 2.) Unless the petitioners contend, the respondent is required to retain Mother “to prov ide paraprofessional services during all of the therapeutic and academic hours required by the minor child ,” and compensate her at “the service rate of $50 per hour” for these services, A.S. will be left without a means of receiving “education other than by forced unpaid paraprofessional labor by the minor child’s mother. ” (Pet. Br. at 2.) The petitioners are seeking an order req uiring the respondent to provide in-home therapeutic and educational servic es and to require the respondent to retain and pay Mother to provide these paraprofessional services to her son at a rate of $50 per hour pending the determin ation of th e underlying due process matter.1 (Id. at 3.) 1 The petitioner’s motion also s ought an order for the respondent to retain a specific instructor to provide home instruction to the child, as well as provide occupational, speech, and cognitive behavioral therapy to the child, however, the respondent ha s already offered to provide the instruction and therapy sought by the petiti oner leaving the sole remaining issue on emergent relief the provision of paraprofessional services. (See Resp. Br. at 7 (noting “[t]he IEP has been agreed upon other than the de mand to pay the mother for her presence”).)

OAL DKT. NO. EDS 03829-21 3 PROCEDURAL HISTORY On April 8 , 20 21, th e New Je rsey Department of Education Office of Special Education Policy and Dispute R esolution (OSEP) received the petitioners’ request for a due process hearing . T he matter was transmitted to the Office of Admi nistrative Law (OAL), where it was filed on April 26 , 2021 . N.J.S.A. 52:14F -5(e), (f), and (g) and N.J.A.C. 1: 6A-1 through 18.5. A m ediation se ssion on the due process petition w as held on April 30, 202 1, and a settlement conference was held with the parties through the OAL on May 6, 2021. On August 12, 2021, the petitioners filed the present request for e mergent relief pending the res olution of the underlying d ue process petition pursuant to N.J.A.C. 16A -12.1. Following a conference call with the parties on August 19, 2021, where a briefing schedule and hearing date were established, the respondent submitted a brief in opposition to the motion, which was received on August 24, 2021. Oral argument on the motio n was h eld on August 26 , 2 021, and the record on the request for emergent relief was closed on that date. FACTUAL DISCUSSION A summary of the pertinent evidence presented is as follows , and I FIND the following FACTS: 1. A.S. is a ten -year-old boy with mul tiple diagnoses and a long history of complex medical needs and devel opmental di fficulties. A.S.’ current medical diagnoses include Epilepsy, Sensory Processing Dis order, Pediatric Acute-onset Neuropsychiatric Syndrome (PANS)2, Dyspraxia,3 PDD-NOS,4 Generalized Anxiety 2 “Pediatric Acute-onset Neuropsychiatric Syndrome (PANS) is a clinical diagnosis giv en to children who have a dramatic – sometimes over night – onset of neuropsychiatric sy mptoms including obsessions/compulsions or food restriction. They are often diagnosed w ith obsessive-compulsive disorder (OCD) or an eatin g disorder, but the sudden onse t of symptoms separates PANS from these other disorders.” Stanford Medicine, PANS: Pediatric Acu te-onset Neur opsychiatric Synd rome, available at https://med.stanford.edu/pans.html (last visited August 26, 2021). 3 Dyspraxia is a “disorder that is characterized by difficulty in muscle control , which causes problems with movement and coordina tion, langua ge and speech, and can affec t learning. ” Learning Disabilities of America, Dyspraxia, available at https://ldaamerica.org/disabilities/dyspraxia/ (last visi ted August 26, 2021).

OAL DKT. NO. EDS 03829-21 4 Disorder, OCD,5 Disorders in Auditory and Visual Processing, and m ultiple learning disorders. (See Due Process Complaint at 1.) 2. Since August 2018 through January 2021, A.S. was a student on home instruction status through Valley View Elementary School in Califon, New Jersey. In January 2021, A.S.’ parents withdrew him f rom school to be home schooled by his mother. (See Resp. Br. at Ex. A.) 3. The child ’s last IEP with the Distri ct was from 201 8. The District proposed an IEP for A.S. in December 2 020, however, that IEP was challenged by A.S.’ parents when they withdrew A.S. from the District in January 2021. 4. As a result of his challenges, it is undisputed that A.S. requires education in a home-based learning environment wi th dedicated special educa tion instruction, and therapy services. The respondent has offered to provid e these required education and therapeutic services to A.S. in a home-based environment.6 (See Resp. Br. at 1 (noting “the services necessary for A.S. to receive an appropriate a nd thorough education have been agreed to , with one important exception. ”)) The respondent is currently providing in-home occupational therapy and speech therapy services to the petitioners. 5. In addition to the home -based e ducation and ther apy services, A. S. requires paraprofessional care during his therapeutic and academic sessions to watch him for seizure symptoms and administer medications as necess ary, ease h is anxiety, and to provide assistance in the provisioning of therap eutic and educational service s. 4 “PDD-NOS stands for Pervasive Developmental Disorder-Not Otherwise Specified. PDD-NOS was one of sever al previously separate subtyp es of autism that were folded into the single diagno sis of autism spectrum disorder (ASD) with the p ublication of the DSM -5 diagnostic manual in 2013. ” Autism Speaks, What is PDD -NOS?, available at https://www.autismspeaks.org/pervasive-developmental-disorder-pdd- nos (last visited August 26, 2021). 5 “Obsessive-Compulsive Disorder (OCD) is a common, chr onic, and long -lasting disorder in which a person has uncontrollable, reoccurring thoug hts (obsessions) and/or behavio rs (compulsions) that he or she feels the urge to repeat over and over. ” National Institute of Mental Health, Obsessive-Compulsive Disorder, available at https://www.nimh.nih.gov/health/topics/obsessive-compulsive-disorder-ocd (last visited August 26, 2021). 6 The petitioners, in their pleading, outlined a number of therapeutic a nd educational requests—seeking a minimum of 12 hours of home instruction by a teacher of their selection, 2 hours of occupational therapy per week, 30 minutes of speech therapy per week , and 45 minutes of cognitive behavioral therapy per week. (Pet. Br. at 3.) During the hearing on t his motion, the respondent confirmed that they agreed to provide each of these requested services to the chi ld during the pendency of the underlying due proce ss motion.

OAL DKT. NO. EDS 03829-21 5 (See Resp. Br. at 2 (nothing that, due to his se izure disorder, A.S. is “unable to use a computer screen or a white board”); Pet. Br. at 1-2.) 6. The respondent has offered to provide a registered nurse (RN) to provide paraprofessional services to A.S. du ring his educational and therapeutic sessions. (Id. at 2.) Because the peti tioners have not accepted the ser vices of an RN, the respondent has not identified a specific individual to provide these services. 7. The petitioners contend that “the only person capable of providing the medically necessary paraprof essional services for eff ective administration of FA PE” is his mother, A.S. (Id. at 3.) 8. Mother does not have formal tra ining or certification in special education or formal medical training and cert ification beyond a master ’s de gree in psych ology, “some medical school ,” and prior experience as an emergency medical technicia n (EMT). Mother also works as a registered doula.7 9. Unless the respondent agrees to retain the services of Mother to provide thes e paraprofessional services to her son and pays Mother “her service rate of $50 pe r hour,” the petitioner s contend that Mother would be required to provid e “forced unpaid paraprofessional labor ” once the school year beg ins in two weeks. (Pet. Br. at 2.) LEGAL DISCUSSION N.J.A.C. 1:6A-12.1 provides that the affected parent(s), guardian, board or public agency may apply in writing for emergent relief. An emergency relief application i s required to set fo rth the specif ic relie f sought and the specific cir cumstances t he applicant contends justify the relief sought. N.J.A.C. 6A:3 -1.6(b) sets forth the standards governing motions for emergent relief: A motion for stay or emergent relief shall be accompanied by a letter mem orandum or brief which shall address the 7 “A doula is a professional labor assistant who provide s physical and emotional support to you and your partner during pregnancy, childbirth and the postpartum period.” MayoClinic.org, What are the benefits of having a doula? , available at https://www.mayoclinic.org/healthy-lifestyle/labor-and-delivery/expert- answers/doula/faq-20057910 (last visited August 26, 2021).

OAL DKT. NO. EDS 03829-21 6 following standards to be met for granting such relief pursuant to Crowe v. De Gioia, 90 N.J. 126 (1982): 1. The pe titioner will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying petitioner’s claim is settled; 3. The petitioner has the likelihood of prevailing on the merits of the underlying claim; and 4. When the equities and interes ts of the parties are balanced, the pe titioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. The petitioners have the burden of establishing all of the above requirements in order to warrant relief in the ir favor. D.I. and S.I. on behalf of T.I. v. Monroe Township Board of Education, 2017 N.J.Agen LEXIS 814, 7 (OAL Docket No. EDS 10816 -17, October 25, 2017). While the petitioners have failed to addre ss the above standar ds specifically in their submission , it shall be reviewed and decided bas ed upon the Crowe standard. The moving party bears the burden of proving each of the Crowe elements “clearly and convincingly.” Waste Mgmt. of N.J. v. Union Cnty . Utils. Auth. , 399 N.J. Super. 508, 520 (App. Div. 2008). Beginning with the first require ment, it is well -settled that relief should not be granted except “when necessary to prevent irrepar able harm.” Crowe, 90 N.J. at 132 - 33. In this regard, harm is generally considered irreparable if it cannot be adequ ately redressed by monetary damages. Id. at 132-33. In other words, it has been desc ribed as “substan tial in jury to a material degree co upled with th e inadequacy of money damages.” Judice’s Sunshine Pontiac v. General Motors Corp. , 418 F.Supp. 1212, 1218 (D.N.J. 1976) (citation omitted). The moving party bears the burden of proving irreparable harm. More than a risk of irreparable ha rm must be de monstrated. Continental Group v. Amoco Chemicals Corp., 614 F.2d 351, 359 (D.N.J. 1980). The requisite for injunctive relief requires “a ‘clear showing of immediate irreparable injury, ’ or a ‘presently existing actual threat; (an injunction) may not be u sed simply to eliminate the possibility of a remot e future injury, or a future invasion of rights, be tho se rights protected by statute or by c ommon law.’”

OAL DKT. NO. EDS 03829-21 7 Id. (citations omitted ). The petitioner ’s brief requested a number of educational and therapeutic services to b e provided to A.S. on an in -home basi s. ( See Pet. Br. at 3 (seeking an order for respondent to provide in -home education, occupational therapy, speech therapy, and cognitive behavioral therapy) .) Although the respondent has agreed to continue providing these services and, with respect to th e occupat ional therapy and s peech th erapy are already providing these services , the petitioner s nonetheless seek an order requiring them to continue doin g so in the event that the respondent ceases to continue providing these services at some time in the f uture. I CONCLUDE, however, that t he speculative nature of the potent ial harm of the respondent determining to stop providing these servi ces to A.S. at some point in the future is a purely speculative potential harm which is not appropriately addressed by an emergent relief petition as such potential harm does not qualify as irreparable harm under the applicable emergent relief standards. Continental Group, 614 F.2d at 359. The remaining re lief sought is the provision of a paraprofessional to assist the child during his th erapeutic and academic services. (Pet. Br. at 3.) While the need for this service is undisputed and the respondent has also agreed to provide this service through the use of a registered nurse, the petitioners seek this service to be provided by Mother and for her to be compensated by the respondent for this service a service rate of $50 per hour. ( Id.) The appointment of Mother to serve as the designated paraprofessional has not been agreed to by the respondent. The petitioners, however, clearly indicated that Mother would continue to provide paraprofessional services to her child regardless of whether or not she was formally appointed to do so by the respondent or whether they provided a registered nurse to perform that role. Although, at the hearing, the petitioners indicated that they would be willing to forego the issue of financial compensation for Mother until the determination of the underlying due process hearing, the sole remaining issue in this motion is the question of whether or not Mother should be receiving hourly compensation for her services. The risk of harm in th is sole remaining issue in this motion is one that is expressed in purely monetary term s which is insufficient to meet the irreparable harm requirement under the provisions of De Gioia. Should the respondent not comply with the petitioners’ demands, namely that the respondent retain and financially compensate

OAL DKT. NO. EDS 03829-21 8 Mother for providing supervisi on for her child ’s instruction and t herapeutic sessions during the pendency of the und erlying due proce ss petition, it is assert ed that Mother would still provide the required services but would be required to do so through “forced unpaid paraprofessional labor” to ensure her son’s education during this period . (Pet. Br. at 2.) The precise measure of harm alleged in this emergent action was pled by the petitioners in their briefing as a financial loss of $50 per hour as the lost compensation payable to Mother at the “service rate” for her services should the relief sought not be granted and Mother not be financially compensated for her t ime participating in the therapy and edu cational services being provided by the respondent to her son .8 (Pet. Br. at 4.) The irrepa rable harm requirement cannot be satisfied where m onetary relief is capable of adequately addressing the alleged harm. Crowe, 90 N.J. at 132 -33. The loss of potential compensation to Mother for providi ng paraprofessional services to assist in her son’s education and therapy is something that can clearly be compensated adequately by monetary damages awarded after a plenary hearing, making the harm pled in this matter not considered irreparable to justify the emergent relief sought. Id. at 133 (finding “reduction to poverty c an be compensated adequately by monetary damages awarded after a distant plenary hearing ” and not justification for emergent relief). Therefore, I CONCLUDE that the petitioners have failed to meet their burden of establishing a clear showing that they wil l suffer immediate irreparable harm unless the requested relief is granted. Because all four of the Crowe v. De Gioia standards as codified in N.J.A.C. 6A:3- 1.6 must be met in o rder for emergent relief to be granted and, for the reasons set forth above, the petitioner s have failed to meet the requireme nts of the first of the four required standa rds, I need not address the motion on the merits with respect to the remaining three requisite prongs. For the reasons detail ed above, I CONCLUDE that 8 Similar financial damages were pled by the petitioner s in their under lying due process petition, where they are seeking, in part, funding of a “compensatory education fund ” which would, in part, “compensate his parents for their expended and opportunity costs” as well as “reimbursement for personal time Parents have spent providing the education that the school district would not.” (Pet. Due Process Petition at 2.)

OAL DKT. NO. EDS 03829-21 9 the petitioners have failed to meet the r equirements set for th in N.J.A.C. 6A:3 -1.6(b) warranting a stay or emergent relief in this matter. ORDER Accordingly, I ORDER that the petitioners’ application for emergent relief be an d hereby is DENIED. This order on application for emergency relief shall remain in e ffect until issuance of the decision in the matter. The parties will be notified of the scheduled hearing dates. If the parent or adult student feels that this decision is not being fully implemented with respect to program or services, this concern shou ld be communicated in writing to the Director, Office of Special Education Policy and Dispute Resolution August 26, 2021 DATE DAVID M. FRITCH, ALJ Date Received at Agency: _August 26, 2021 Date Mailed to Parties: _August 26, 2021 /dw