BV and BV obo BV v Cherry Hill Twp BOE | Case 06254-20 | 2020-07-16

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 06254-20 AGENCY DKT. NO. 2020-31711 B.V. and B.V. ON BEHALF OF B.V., Petitioners, v. CHERRY HILL TOWNSHIP BOARD OF EDUCATION, CAMDEN COUNTY , Respondent. ___________________________________ Jamie Epstein, Esq., for petitioners Robin S. Ballard, Esq., for respondent (Schenk, Price, Smith & King LLC, attorneys) Record Closed: July 15, 2020 Decided: July 16, 2020 BEFORE JACOB S. GERTSMAN, ALJ t/a: STATEMENT OF THE CASE In this matter, Petitioners B.V. and B.V. (Parents) bring an application for emergent relief against the Cherry Hill T ownship Board of Education (CHBOE) on behalf of minor student B.V., asserting that respondent had failed to provide services based on the stay-put 2019-2020

OAL DKT. NO. EDS 06354-20 2 Individualized Education Program (IEP). Respondent concedes that the services should be provided based on the stay-put 2019-20 IEP which renders the request for emergent relief moot. PROCEDURAL HISTORY On July 9, 2020, petitioner filed an application for emergent relief with the Office of Administrative Law. 1 The parties presented oral argument on the emergent relief application on July 15, 2020 via Zoom Video Communications, Inc. FACTUAL DISCUSSION AND FINDINGS For purposes of deciding this request for emergent relief, the following pertinent facts which form the basis for the d etermination herein, are no t in dispute. B.V. was born on October 31, 2014, and is classified as eligible for special education and related services under the category of Communication Impaired. She completed the 2019-2020 school year as a pre-school student with a disability and will enter kindergarten in September of 2020. An IEP was proposed by CHBOE for 2020-2021 for B.V. which was not agreed to by the parents.2 The extended school year (ESY) program commenced on July 6, 2020. The parents contacted B.V.’s case manager, Michelle Giambrone (Giambrone) via electronic mail on June 30, 2020 (Petitioner’s Request for Emergent Relief at 3), seeking confirmation that B.V. would receive services based on the stay-put from the 20 19-2020 IEP . Giambrone replied by electronic mail dated July 1, 2020 that “services will reflect what was written in the 19-20 IEP,” however, she listed the services reflected in the proposed 2020-2021 IEP , which provided fewer services for B.V. Id. at 4. Petitioners responded to Giambrone by electronic mail later on July 1, 2020, advising her of her error. Id. at 5. Giambrone replied shortly thereafter advising that “[s]ervices will reflect the 20 -21 IEP for summer ESY programs an d services.” Id. at 6. Following the filing the instant Request for Emergent Relief, Trina Ragsdale (Ragsdale), the 1 Petitioners’ underlying due process was previously filed with the Office of Special Education Policy and Dispute Resolution (SPDR or Department) and transmitted to the OAL. 2 The subsequent mediation failed to resolve the dispute which subsequently led to the filing of petitioners’ due process petition.

OAL DKT. NO. EDS 06354-20 3 Supervisor of Pupil Services, contacted petitioners via electronic mail on July 9, 2020, stating the following: Please excuse any confusion, to clarify, ESY speech services as listed in the 19-20 stay put IEP will be followed. We are willing to make up the two individual speech sessions that were missed. Feel free to contact me with any questions. (Respondent’s Opposition to Request for Emergent Relief at Exhibit 1.) At oral argument, petitioners claimed that while B.V. has already received one speech for the week beginning on July 13, 2020, a second one has yet to be scheduled. CHBOE was unable to confirm if a second session has in fact been scheduled, but did not dispute that stay-put based upon the 2019-2020 IEP remains in effect. LEGAL ANALYSIS AND CONCLUSION The regulations governing controversies and disputes before the Commissioner of Education provide that “[w]here the subject matter of the controversy is a particular course of action by a district board of education . . . the petitioner may include with the petition of appeal, a separate motion for emergent relief or a stay of that action pending the Commissioner's final decision in the contested case.” N.J.A.C. 6A:3-1.6(a). The regulations further provide that the Commissioner may “[t]ransmit the motion to the OAL for immediate hearing on the motion.” N.J.A.C. 6A:3-1.6(c)(3). At such a hearing, the petit ioner must show that he or she satisfies the following four standards: 1. The petitioner 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 a likelihood of prevailing on the merits of the underlying claim; and

OAL DKT. NO. EDS 06354-20 4 4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. In a matter involving the application of stay-put, however, petitioner is not required to meet the above test. Rather, the stay-put acts as an automatic statutory injunction against any attempt to change a student’s placement from that which is in effect at the time the parents invoke the dispute-resolution procedures embodied in state and federal law. Drinker v. Colonial Sch. Dist., 78 F .3rd 859, 864 (3d Cir. 1996). The “stay-put” provision of the Individuals with Disabilities Education Act (IDEA) provides in pertinent part: [D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents agree otherwise, the child shall remain in the then-current educational placement of the child. [20 U.S.C.A. § 1415(j).] Furthermore, pursuant to the New Jersey Administrative Code, no changes are to be made to a child’s classification, program or placement unless emergency relief is granted. N.J.A.C. 6A:14-2.7(u) specifically provides: Pending the outcome of a due-process hearing, including an expedited due-process hearing, or any administrative or judicial proceeding, no change shall be made to the student’s classification, program or placement unless both parties agree, or emergency relief as part of a request for a due-process hearing is granted by the Office of Administrative Law according to (m) above or as provided in 20 U.S.C. §1415(k)4 as amended and supplemented. The “stay-put” provision acts as an automatic preliminary injunction, the overarching purpose of which is to prevent a school district from unilaterally changing a disabled student’s placement. See, Drinker, 78 F.3d at 864. In terms of the applicable standard review, the emergent-relief factors set forth in N.J.A.C. 6A:14-2.7(r)-(s), N.J.A.C. 1:6A-12.1, and Crowe v. DeGioia, 90 N.J. 126, 132-43 (1982), are generally inapplicable to enforce the “stay-put”

OAL DKT. NO. EDS 06354-20 5 provision. As stated in Pardini v. Allegheny Intermediate Unit, 420 F .3d, 188 (3d Cir. 2005), “Congress has already balanced the competing harms as well as the competing equities.” In Drinker the Court explained: [T]he [IDEA] substitutes an absolute rule in favor of the status quo for the court’s discretionary consideration of the factors of irreparable harm and either a likelihood of success on the merits or a . . . balance of hardships. [Drinker, 78 F.3d at 864 (citations omitted).] In other words, if the “stay-put” provision applies, injunctive relief is available without the traditional showing of irreparable hard. Ringwood Bd. of Educ. v. K.H.J. ex rel K.F.J., 469 F. Supp. 2d 267 (D.N.J. 2006). Under those circumstances, it becomes the duty of the court to ascertain and enforce the “then-current educational placement” of the handicapped student. Drinker, 78 F.3d at 865. The purpose of “stay-put” is to maintain stability and continuity for the student. The first preference for interim placement is one agreed to by the parties. However, when the parties are unable to agree, the placement in effect when the due process request was made, i.e., the last uncontroverted placement or program, is the status quo. In the instant matter, it is not in dispute that respondent must provide services to B.V. based upon the 2019-2020 IEP. Notwithstanding this agreement, the parties have failed to resolve this matter, which undoubtedly could have been effectuated through greater communication, or by the scheduling of the required speech services by CHBOE. Unfortunately, neither has occurred. Therefore, as the record does not reflect whether the speech services have in fact been provided to B.V. for the ESY period that commenced on July 6, 2020, I CONCLUDE that CHBOE has not provided the services to B.V. as specified in the stay-put 2019-2020 IEP . I further CONCLUDE that the 2019-2020 IEP shall remain as stay-put during the pendency of this proceeding.

OAL DKT. NO. EDS 06354-20 6 ORDER It is ORDERED that the 2019-2020 IEP shall remain as stay-put during the pendency of this proceeding. It is Further ORDERED that this tribunal shall reserve a finding on the remaining issues set forth in the due process petition until after the hearing in this matter has been completed. This decision on application for emergency relief sh all remain in effect until the issuance of the decision on the merits in this matter. If petitioner feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, Office of Special Education Programs. July 16, 2020 DATE JACOB S. GERTSMAN, ALJ t/a Date Received at Agency: Date Mailed to Parties: JSG/nd