DK obo JK v Mainland Regional BOE | Case 01237-22 | 2022-03-22

State of New Jersey OFFICE OF ADMINISTRATIVE LAW New Jersey is an Equal Opportunity Employer DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 01237-22 AGENCY DKT. NO. 2022-33900 D.K. ON BEHALF OF J.K., Petitioner, v. MAINLAND REGIONAL BOARD OF EDUCATION, Respondent. __________________________ Jamie Epstein, Esq., for petitioner Brett E.J. Gorman, Esq., for respondent (Parker McCay, P.A., attorneys) BEFORE JEFFREY R. WILSON, ALJ: STATEMENT OF THE CASE D.K., the petitioner, brings an action for emergent relief, on behalf of her adult son, J.K., against the Mainland Regional Board of Education (Board/District) seeking an order to return J.K. to the placement and program described in J.K. ’s Individualized Education Program (IEP) that was in effect prior to J.K.’s January 3, 2022, removal and to provide J.K. with compensatory educat ion from March 1, 2022 , to the date the respondent returns J.K. to the placement and program described in J.K. ’s IEP that was in effect prior to J.K.’s January 13, 2022, removal.

OAL DKT. NO. EDS 01237-22 2 PROCEDURAL HISTORY D.K. is the parent and legal guardian of J.K. who was born August 4, 2003, and is qualified for and receives special education services , c ategorized as multiply disabled. His current placement and program are Mainland Regional High School. On January 13, 2022, J.K. was involved in an altercation with other s tudents on school property. On January 21, 2022, a meet ing was held with school representatives and members of the IEP team to review the incident. As a result o f that review, it was determined J.K.’s behavior in that incident was not a manifestation of his disability. It is alleged he inflicted serious bodily injury upon another person while at school, on school premises or at a school functio n. Accordingly, notice of an automatic removal from school for forty-five calendar days (January 14, 2022, to March 1, 2022) was issued. On February 1 6, 2022 , the Office of Special Education (OSE) acknowledged receipt of petitioner’s request for an expedited petition for due process, for immediate placement of J.K. back in his cu rrent progr am and p lacement in school , along with compensatory education. The expedited due process hearing was for the disciplinary matter only. On Febr uary 17, 2022, t he expedited due proc ess petition was assigned to Elaine. B. Frick, ALJ, and scheduled for a prehearing conference on February 18, 2022. Due to a scheduling conflict, the prehearing conference was adjourned to February 28, 2022. I n the meantim e, this matter was reassigned to the undersigned ALJ who rescheduled the prehearing con ference, to be conducted telephonically, on March 3, 2022. During the March 3, 202 2, prehearing conference, it was confirm ed J.K. was returned to his current placement and program at the Mainland Regional Hi gh School, on March 1, 2022 . Accordingly, it was concl uded that th e basis for hearing this matter on an expedited basis was now moot and that the matter be converted to a re gular due process petition.

OAL DKT. NO. EDS 01237-22 3 On March 4, 2022, an order was entered that this matte r be converted to a regular due process petit ion, under the same OAL Docket Number EDS 01237-22 and Agency Docket Number 2022-33900. The remaining issues involving compensatory education and all other special education issues shall be adjudicated thro ugh a regular due process petition. It was al so or dered that this m atter be referred to another ALJ solely for the purpose of conducting a settlement conference . A ny issue s not resolved at the settlement conference shall be returned to th e undersigned ALJ as the hearing officer. Furthermore, it was ordered that the parties participate in a teleph one conference with the undersigned ALJ on March 9, 202 2, to select a mutually convenient date and time for their settlement conference. During the March 9, 2022, conference, the parties selected March 16, 2022 , at 1:00 p.m. as the mutually convenient date and time. On March 15, 2022, the petitioner filed the within application for emergent relief On March 16, 2022, t he parties participa ted in a settlement conference before Barry Moskowitz, ALJ. The conference was unsuccessful. That evening, the petitioner sent a letter to the undersigned ALJ seeking a date to be heard on th e within application for emergent relief. On March 17, 2022, the parties were emailed formal notice that oral argument on p etitioner’s emergent application would be heard on March 22, 20 22, at 11:00 a.m., utilizing the Zoom platform. On March 18, 2022, the peti tioner sent another letter to the undersigned ALJ requesting a management conference regarding the initial petition. The parties were informed, vi a e mail, t hat a management confer ence would be schedu led after oral argument on the within application for emergent relief, during the Zoom session on March 22, 2022. The counsel for the parties presented oral argument on the emergent relief application on March 22, 2022 , utilizing the Zoom platform. D.K. and his parents were present, and the record closed.

OAL DKT. NO. EDS 01237-22 4 FACTUAL DISCUSSION Based upon the oral arguments of counsel and examination of the documentary evidence, I FIND the following FACTS are undisputed: J.K. is currently a twelfth-grade student eligible for special education service s through the District. He is classified as emotionally disturbed and other health impaired, due to his Attention Deficit Hyperactivity Disorder (“A DHD”). As such, J.K.’s 2021-2022 IEP provides that he shall receive all his academic courses, as well as Physical Education (“PE”) in a Special Class Emotional Regulation Impairment setting . Most of these courses are provided through the Transition Academic Program (“TAP”). The IEP also specifies that the length of J.K.’s school day will be shortened per the TAP schedule and he will be accompanied to and from school by a bus attendant. As such, J.K. arrives at school by 8:20 a.m. each morning and leaves by 1:40 p.m. each afternoon. Students in the TAP p rogram may not leave the TAP classroom unless accompanied by a paraprofessional, including to attend non -TAP electives or use the restroom. However, there is a restroom located within the TA P classroom that the students are free to use at any time. Pursuant to the behavioral interventions section of his most recent IEP, J.K. participates in the TAP Behavioral Support Program to reward positive behavior. This program allows students t o earn “TAP Dollars” in exchange for positive behavior, which can then b e redeemed to privileges such as lunch outside of the TAP classroom as well as gift cards or items from the District store. LEGAL ANALYSIS AND CONCLUSION N.J.A.C. 1:6A-12.1(a) provi des tha t the affected parent(s), guardian, district or public agency may apply in writing for emergent relief. An emergent -relief application is required to set forth the specific relief sought and the specific circumstances that the applicant contends justify the relief sought. Each application is required to be supported by a n affidavit prepared by an affiant with personal knowledge of the facts contained

OAL DKT. NO. EDS 01237-22 5 therein and, if an expert’s opinion is included, the affidavit shall specify the expert’s qualifications. Emergent relief shall only be reques ted for the following issue s p ursuant 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 determina tions of interim alternate educational settings; iii. Issues concerning placement pending the outcome of due process proceedings; and iv. Issues involving graduat ion or participation in graduation ceremonies. Here, the petitioner seeks an order to return J.K. t o the placement and program described in J.K. ’s IEP that was in effect prior to J.K.’s January 13, 2022, removal and to provide J.K. with compensatory education 1 from March 1, 2022 , to the date the respondent returns J.K. to the placement and program descr ibed in J.K.’s IEP that was in effect prior to J.K.’s January 13, 2022, removal. The petitioner seeks relief under the third prong arguing that the District modified J.K.’s educational program in violation of the “stay put” provision of the Individuals wi th Disabilities in Education Act (“IDEA”). 20 U.S.C. 1415(j). While usu ally a party requesting emergent relief must establish the factors set forth in Crowe v. DeGioia , 90 N.J. 126 (1982), there is an exception to these proof requirements where a parent alleges that the district violated the “stay p ut” provision . Id. Instea d, in order to be entitled to emergent relief, the parent must demonstrate that the district implem ented or proposed a fundamental change to the student’s then -current educational pl acement. G.R. o/b/o M.B. v. Irvingtown Twp. Bd . of Educ., EDS 00986-15, 2015 WL 3962537, *1 (N.J. Adm. Feb. 5, 2015). 1 The issue of compensatory education will not be addressed on an emergent basis.

OAL DKT. NO. EDS 01237-22 6 It is undisputed that J.K.’s “then -current educational placement” refers to his 2021-2022 IEP, that details his placement category as follows: In the presence of general education students between 40% and 79% of the school day (2021-2022) In the present matter, the petitioner argues that the District violated the stay put provision by segregating J.K. from being in the presence of his non-disabled peers. Specifically, the p etitioner alleges that (1) J.K. is p rohibited from leaving the TAP classroom for PE or lunch; (2) J.K. is required to arrive at school after the other students and leave before the other students; and (3) J.K. is onl y permitted to leave the TAP classroom with an es cort. The District argues that the petitioner has failed to demonstrate that the District has made any change or modification to J.K.’s educational program, let alone a fundamental change. The petitioner concedes J.K. has participated in the TAP progra m since the beginning of the 2021-2022 school year. Although the petitioner argues that J.K.’s IEP is inappropriate, the petitioner concedes J.K.’s stay pu t, as detailed in his current IEP, has remain unchanged since it was developed. Based upon the for egoing, I CONCLUDE there has been no change or modification to J.K.’s current IEP . His stay put remains as detailed in his IEP. Accordingly, I CONCLUDE that the petitioner has failed to establish his burde n of proof required for emergent relief. ORDER Having concluded that the p etitioner has failed to establish his burden of proof , the petitioner’s request for emergent relief is DENIED.

OAL DKT. NO. EDS 01237-22 7 It is hereby ORDERED that the parties shall participate in a tele phone management conference with the undersigned ALJ on April 4 , 202 2, at 11:00 a .m. Formal notice for this conference will be sent under separate cover. This order on application for emergency relief shall remain in effect 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 should be communicated in writing to th e Director, Office of Special Education. March 22, 2022 DATE JEFFREY R. WILSON, ALJ Date Received at Agency ___________________________ Date Mailed to Parties: JRW/tat