CP obo FP v Clifton BOE – Decision on Remand | Case 05319-21 | 2021-10-18

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 05319-21 AGENCY DKT. NO. 2017-26116 (ON REMAND ) C.P. ON BEHALF OF F.P., OAL DKT. NO. EDS 15781-17 Petitioners, v. CLIFTON BOARD OF EDUCATION, Respondent. ___________________________ Donald A. Soutar, Esq. for petitioner C.P. on behalf of F.P. (John Rue & Associates, attorneys) Jessika Kleen, Esq. for respondent Clifton Board of Education (Machado Law Group, attorneys) Record Closed: October 7, 2021 Decided: October 18, 2021 BEFORE GAIL M. COOKSON, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY On April 27, 2017, C.P. filed this petition on behalf of her son F.P. and requested a due process hearing seeking independent educational evaluations (IEE) and

OAL DKT. NO. EDS 05319-21 2 reimbursement for same from respondent Clifton Board of Education (District) pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §1400 et seq. The due process petition was ultimately heard and adjudicated by the Honorable Leslie Z. Celentano, A.L.J., on December 1 3, 2018. Therein, she determined that the IEEs obtained by petitioner1, which had never been provided to the District, did not meet the comparable agency cr iteria for evaluations and thus were not eligible for reimbursement. Judge Celentano also found that petitioner had not supported the very high costs of the IEEs and that such would not be considered reasonable. C.P. a ppealed to the United S tates Di strict Court pursuant to 20 U.S.C.A. § 1415(i)(2) on March 13, 2019. The matter proceeded on motion for summary judgment in the federal court. On August 6, 2020, the Honorable Kevin McNulty, U.S.D.J., entered an Opinion and an Order partially gra nting summary judgment in favor of the District but remanding the matter to the Office of Administrative Law for the limited issue of whether it was liable for the reimbursement of the IEEs, as set for th in more detail below. There apparently was some pos t-judgment motion practice before Judge McNulty which was denied. On June 14, 2021, petitioner advised the Office of Special Education Policy and Dispute Resolution (OSEP) that the matter had been remanded and requested further instruction if any additional action was required for the remand to be effectuated. On June 22, 2021, OSEP transmitted the matter to the Office of Administrative Law where it was filed. The matter was originally due t o be assigned to Judge Celentano, but wa s reassigned instead to the undersigned on July 1, 2021. A telephonic case management was convened on July 12, 2021, at which time counsel for petitioner opted not to avail herself of the opportunity to produce any witnesses for an evidentiary hearing. I nstead, both parties agreed to draft a joint stipulation of th e relevant facts on the remand, and a briefing schedule for cross-motions for summary decision. 1 Petitioner pro cured the two evaluations she sought on June 15, 2017 (central auditory processing (CAP)), and September 10, 2017 (psychological evaluation).

OAL DKT. NO. EDS 05319-21 3 This matter is now ripe for determination. STIPULATION OF FACTS 1. Respondent, the Clifton B oard of Education (here inafter “Dis trict”), is a public body o rganized pursuant to N.J.S.A. 18A:10 -1 et seq . to operate in the Clifton Public School District. 2. F.P. is a minor student who, at all times relevant, was eligible for special education and related services. 3. C.P. is F.P.’s mother and natural guardian. 4. In November 201 6, the District conducted a triennial re -evaluation of F.P. that included a November 21, 2016, psychological evaluation. 5. On January 18, 2017, petitioner on behalf of F.P., sought two independent evaluations (the “IEEs”) : a central audit ory processing (“CAP”) eva luation and a psychological evaluation, at public expense. 6. The District did not file a due process complaint within twenty days of the January 18, 2017, request. 7. The District did not, within twenty days, e nsure that the requested evaluations were provided at public expense. 8. Petitioner filed a request for due process dated April 27, 2017. 9. Petitioner obtained the IEEs on her own.

OAL DKT. NO. EDS 05319-21 4 10. At no point prior to t he administrative hearing or during the administrative hearing were the eval uations provided to the District or to the Court. A due process hearing was held on October 24, 2018. 11. The two evaluations and/or their invoices were n ot introduced as evidence at the hearing in this matter. 12. Petitioner offered no evidence or witnesses at the hearing. 13. The petitioner did not attend the hearing and there was no certification of petitioner submitted to the ALJ. 14. The evalu ators did not testify, and no certi fication of the evaluators was submitted. 15. By letter dated August 18, 2020, the Mother provided the CAP evaluation and the psychological evaluation to the District. ISSUE ON REMAND By Order entered on August 6, 2020, the Honorable Kevin McNulty, U.S.D.J., set forth “that the case is remanded to the administrati ve law judge who shall gr ant plaintiff the option to submit additional evidence on the issue of liability only; ” and “that the administrative law judge ’s decision is otherwi se AFFIRMED and that the maximum reasonable amount of reimbursement is $1800. ” More specifically, Judge McNulty stated in the accompanying Opinion: The ALJ’s decision was based in large part of C.P. ’s stunning failure to pro duce evidence of any kind that these IEEs met the requirement for reimbur sement at public expense. If C.P. , warned of what was at stake, had make a strategic decision that she would nevertheless rely sol ely upon her waiver arguments – which the ALJ, and I, have

OAL DKT. NO. EDS 05319-21 5 found ineffectiv e – she would have had to live with that decision. But the District, to judge from its opening statement , appears to have felt it was vulnerable for failing to respond within twenty days, and conceded the waiver arguments. It is possible to construct a scenario whereby, with fair warning to all, the AL J could have expli citly rejected that concession. After all, it is public, not private, money at stake, and the ALJ might have felt she had a supervisory role to play. B ut no such ruling was sought or made. I will therefore remand for further proceedings. At any hearing on remand, C.P. and her counsel are now on notice that if they fail to produce evidence , as they did at the first hearing, the result will very likely be the same – a finding that they are not entitled to reimbursement at all. Accordingly, the within proceeding is limited to the issue of whether petitioner has proven that she met the criteria for reimbursement, which reimbursement will, even if she prevails, be awarded in no greater amount than $1,800. While petitioner appears to have included arguments in her motion papers that relate to other issues raised in the earlier proceedings, those will not be considered to the extent they go beyond this limited issue on remand; that is, arguments on the amount of th e reimbursement cap or the lega l authority for requir ing compliance with the District ’s criteria for obtaining comparable evaluations will be preserved for appellate review in the Third Circuit but will not be taken up herein.2 LEGAL ANALYSIS AND CONCLUSIONS OF LAW The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 –1485, is designed to assure that disabled children may access a free appropriate public education (FAPE) that is tailored to their sp ecific needs. 20 U.S.C . § 1400(c). Under the State regulations i mplementing the IDEA, N.J.A.C. 6A:14 -1.1 to -10.2, a scho ol district of residence is responsible for “the location, identification, evaluation, 2 In addition, issues raised by petitioner only in her final responsive papers to the effect that Judge Celentano did not address certain 2018 pretrial motions before the plenary hearing completed and she entered her Final Decision will definitely not be addressed and may have been waived with the first federal district court appeal.

OAL DKT. NO. EDS 05319-21 6 determination of eligibility, development of a n individualized education program and the provision of a [FAPE] t o students with disabilities.” N.J.A.C. 6A:14 -1.3. In d etermining whether a student is eligible for special -education services, a school district must conduct an initial evaluation, which “shall consist of a mul ti-disciplinary assessment in all areas of suspected disability,” and if the child is deemed eligibl e, a school district must conduct “a multi -disciplinary reevaluation . . . to determine whether the student continues to be a student with a disability” at least every three years. N.J.A.C. 6A:14 - 3.4(f); N.J.A.C. 6A:14-3.8(a). N.J.A.C. 6A:14-2.5(c) states, in pertinent part: Upon completion of an initial evaluation or reevaluation, a parent may request an independent evaluation if th ere is disagreement wit h the initia l evaluation or a reevaluation provided by a district board of education. The regulation governing IEEs “contemplates that parents are entitled to reimbursement for independent evaluations when they are collaborating wi th the local educational agency in developing an appropriate IEP , based on the district's own evaluations and any independent evaluations.” M.S. v. Mullica Twp. Bd. of Educ., 485 F. Supp. 2d 555, 574 –75 (D. N.J. 2007), aff'd, 263 F. App'x 264 (3d Cir. 2008 ). Here, as found by t he District Court, “[t]he regulations may r equire the public to pay for an IEE obtained by the parent, but the entire premise of that system is that the results of that IEE will play some role in the FAPE process . Parents may obtain any evaluation t hey wish at their o wn expense, but the taxpayers a re not required to subsidize the parents’ curiosity.” [Opinion at 18.] Under 34 C.F.R. 300.502(b) and (e) (2018), a school board has no duty to pay for an IEE demonstrated not to meet agency criteria: . . . insignificant or trivial deviations from the letter of agency criteria may be acceptable as long as there is substantive compliance with all material provisions of the agency criteria and the IEE provides detailed, rigorously produced and accessibly presented data.

OAL DKT. NO. EDS 05319-21 7 [Seth B. v. Orleans Par. Sch. B d., 810 F.3d 961, 97 9 (5th Cir. 2016).] Here, there is no dispute that the IEEs were not provided to the District until three years after they (and the first appeal) were completed. They were never made part of the prior record and they were never util ized in the IEP/FAPE process , and they are now outdated. Accordingly, I CONCLUDE that petitioner’s claim for reimbursement of her independent evaluations must be denied. ORDER Based on t he foregoing, it is ORDERED that th e petitioner C.P.s’ request for reimbursement from the Cli fton Board of Educa tion for IEEs obtained in 2017 is DENIED. This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2019) and is appealable by filing a complaint and bringing a civil action 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 (2019). If the parent or adult student feels that this decisio n 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 Policy and Dispute Resolution. October 18, 2021 DATE GAIL M. COOKSON, ALJ Date Received at Agency 10/18/21 Date Mailed to Parties: 10/18/21 id