CB obo CB v Elizabeth BOE | Case 2021-32618ER | 2021-03-30

New Jersey Is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION EMERGENT RELIEF OAL DKT. NO. EDS 02747-21 AGY REF NO. 2021-32618 C.B. ON BEHALF OF C.B., Petitioner v. ELIZABETH CITY BOARD OF EDUCATION, Respondent _____________________________________ C.B., Petitioner, pro se Richard P. Flaum , Esq., for Respondent , (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys) Christina M. DiPaola , Esq., for Respondent ( LaCorte, Bundy, Var ady & Kinsella, attorneys) Record Closed: March 29, 2021 Decided: March 30, 2021

OAL DKT. NO. EDS 02747-21 - 2 - BEFORE THOMAS R. BETANCOURT, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner filed a Request for Emergent Relief with the Office of Special Education P olicy and Procedure (OSEP) in the New Jersey Department of Education (DOE). The contested matter was transferred to the Office of Administrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on March 23, 2021, to be heard on an emergent basis. Petitioner seeks a determination on behalf of the student that the Individualized Education Program (IE P), dated December 2, 2020, is the stay put placement and program. Oral argument on the request for emergent relief was heard on March 29, 2021. FACTUAL BACKGROUND C.B. is a seven-year-old second grade student. He was formerly enroll ed in the Respondent District. He was found eligible to receive special education and related services under the category “autistic”. C. B. had an IEP, which cove rs the time period from December 17, 2020 to December 21, 2021 . The IEP provided for a placem ent for C.B. at the Developmental Learning Center in New Providence, New Jersey. Petitioner appealed a residency determination by respondent, which was heard at the OAL before the Honorable Ernest M. Bongiova nni, ALJ. Judge Bongiova nni entered an Initia l Decision, dated De cember 8, 2020, wherein he determined that petitioner did not reside in the Elizabeth school district . Judge Bongiova nni also

OAL DKT. NO. EDS 02747-21 - 3 - determined that petitioner was to reimburse respondent for tuition expended on behalf of her son. (Exhibit A, Certification of Amy A. Pujara, Esq.) The Acting Commis sioner of Education, by Decision dated March 8, 2021, affirmed Judge Bongiova nni’s determination that pe titioner did not reside in the Elizabeth school district. The Acting Commissioner did not agr ee with the calculation of tuition reimbursement ordered by Judge Bongiovanni and remanded the matter to the OAL for a determination of annual tu ition cost and a calculation of tu ition that is consistent with N.J.S.A. 18A:30-1(b). (Exhibit B, Certification of Amy A. Pujara, Esq.) LEGAL ANALYSIS AND CONCLUSION Initially, it must be determined if petitioner is entitled to request emergent relief. A party may only request emergent relief for the following reasons, in accordance with N.J.A.C. 6A:14-2.7(r)1: i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, including manifestation determinations and determinations of int erim alternate education settings; iii. Issues concerning placement pending outcome of due proces s proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. The District, in their brief, take s the position that p etitioner is not entitled to seek emergent relief in the instant matter. The District asserts that petitioner is not a resident of the Elizabeth school district. Petitioner asserts that she is a resident within the Elizabeth school district.

OAL DKT. NO. EDS 02747-21 - 4 - Specifically, petitioner is s eeking stay put and maintaining that the IEP dated December 2, 2020 is the stay put. Petiti oner continues to assert that she was and is a resident of the Elizabeth school district. It has been previously determined by the Decision of the Acting Commis sioner that petitioner is not a resident of the Elizabeth School District. That does not pr eclude a current showing of residency by petitioner. However, as this is not an appeal of a new residency determination by respondent, the undersigned is without j urisdiction to make a residency determination. Petitioner will need to apply to re -enroll her son in the Elizabeth school district, and have the District determine again she is not a resident, before the OAL would have jurisdiction to make a residency dete rmination should petitioner appeal that decision. On the surface , stay put is in issue . Accordingly, the elements of Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982) (enumerating the factors later codified at N.J.A.C. 6A:14.2-7(s)1) need not be analyzed. The real question that requires resolution herein is not whether the December 2, 2020, IEP is t he stay put, b ut whether petitioner’s son is entitled to be educated within the Elizabeth school district. The matter of residency has already been determined. The undersigned cannot rehear the matter heard by Judge Bongiovanni, and affirmed by the Acting Commissioner of Education, relating to residency. That is for the Appellate Division. In the instant matter , C.B.’s enrollment in the Elizabeth school distric t ended with the Acting Commissioner’s Decision affirming Judge Bongiovanni’s determination t hat petitioner did not reside within the Elizabeth school district. Further, I find that N.J.A.C. 6A:14 -7.7 does not apply in the instant matter, as neither the receiving or sending school district terminated C.B.’s placement at the

OAL DKT. NO. EDS 02747-21 - 5 - Developmental Learning Center. C.B. was rendered ineligible to receive an education within the Elizabeth school district by virtue of not being a resident therein. Petitioner argues that she was not provided with proper notice regarding respondent’s disenrollment in the Eli zabeth school di strict and, therefore, his disenrollment at the Developmental Learning Center, citing N.J.A.C. 6A:14-2.3. I do not agree that the notice requireme nts set forth in N.J.A.C. 6A:14 -2.3 apply herein. This is not a situation wherein respondent is proposing a change in the IEP, or other services. The reality is that respondent’s obligation to educate C.B. ended with the Acting Commissioner’s decision. Respondent continued C.B.’s placement at the Developmental Learning Center throughout petitio ner’s appeal of respondent’s residency appeal and continued the placement until such time as the Commissioner’s Decision was entered. I would note that the matter regarding residency within the Elizabeth school district might be resolved if petitioner wo uld re-enroll her son. Petitioner maintains she lives in Elizabeth and has always done so. Re -enrollment, with the production of those documents attached to the R equest for Emergent Relief , may result in a determination by respondent the petitioner does live in the Eliz abeth school district and that C.B. is entitled to be educated therein. Based upon the foregoing I CONCLUDE that petitioner’s request for emergent relief must be DENIED. ORDER It is hereby ORDERED that petitioner’s request for emergent relief is DENIED; and

OAL DKT. NO. EDS 02747-21 - 6 - This decision on application for emergency relief shall remain in effect until the issuance of the decision on the merits in this matter. The hearing having been requested by the parents, this matter , is hereby returned to the Depar tment of Education for a local resolution session, pursuant to 20 U.S.C.A. § 1415 (f)(1)(B)(i). If the parent or adult student feels that this decision is not bein g fully implemented with respect to program or services, this concern should be communicated in writing to th e Director, Office of Special Education Programs. March 30, 2021 DATE THOMAS R. BETANCOURT, ALJ Date Received at Agency ________________________________ Date Mailed to Parties: db

OAL DKT. NO. EDS 02747-21 - 7 - APPENDIX List of Witnesses For Petitioner: C.B., Petitioner For Respondent: None List of Moving Papers For Petitioner: Request for Emergent Relief IEP dated December 2, 2020 IEP dated March 1, 2017 Registration form dated March 3, 2016 Rental Agreement dated January 1, 2021 Rental Agreement dated January 1, 2020 Rental Agreement dated January 1, 2019 Tenant Verification Form NJ Division of Elections search results Petitioner’s drivers’ license PSE&G statement Elizabethtown Gas statement of account PSE&G statement Optimum statement Form 1095-B for 2018 and 2019 Authorization for Active Duty Training Letter from Children’s System of Care dated July 26, 2019

OAL DKT. NO. EDS 02747-21 - 8 - County of Union Notification Form Citibank card USAA statement Family Care letter For Respondent: Letter brief in opposition to request for emergent relief Certification of Diana Pinto-Gomez, Director of Special Services with Exhibit A Exhibit A email string Certification of Amy A. Pujara, Esq., with Exhibits A and B Exhibit A Initial Decision of Hon. Ernest M. Bongiovani, ALJ, dated December 8, 2020 Exhibit B Decision of Commissioner of Education, dated March 8, 2021