Elizabeth BOE v JP obo BP | Case 04587-21 | 2021-09-20

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO EDS 04587-21 AGY REF NO. 2021-32812 ELIZABETH CITY BOARD OF EDUCATION, Petitioner v. J.P. ON BEHALF OF B.P., Respondent. ___________________________________ Richard P. Flaum, Esq., for Petitioner (DiFrancesco, Bateman, Coley, Kunzman, Davis, Lehrer and Flaum, P.C., attorneys) J.P., Respondent/Parent of B.P, pro se Record Closed: September 20, 2021 Decided: September 20, 2021 BEFORE THOMAS R. BETANCOURT, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner file d a due process petition dated May 1 7, 2021 , with the Office of Special Education Policy and Dispute Resolution in the Department of Education.

OAL DKT. NO. EDS 04587-21 - 2 - The matter was transferred to the Office of Admin istrative Law (OA L) a s a contested matter on May 27, 2021. A hearing on the matter was scheduled for August 30, 2021, at 9:00 a.m. via Zoom. Petitioner, Petitioner’s witness, Petitioner’s counsel and a Spanish interpreter all attended the hearing via Zoom. Respondent did not. Petitioner presented its proofs ex parte pursuant to N.J.A.C. 1:1 -14.4(d). The matter concluded at approximately 9:15 a.m. on August 30, 2021. Thereafter petitioner emailed both a judicial assistant and one of our I T personnel abo ut how to enter the hearing. T he matter was then rescheduled to September 17, 2021 at 9:00 a.m. A hearing was hel d on September 17, 2021. Again, respondent failed to attend the hearing. The undersigned did not require the Distri ct to re -present its pro ofs, as it had done so on August 30, 2021. The following decision is based upon the pro ofs present on that date. The undersigned waited until Monday, September 20, 2021, to issue this decision, as required by N .J.A.C. 1:14-4 et. Seq. No explanation re garding respondent’s failure to appear was received. The record closed September 20, 2021. SUMMARY OF RELEVANT TESTIMONY Tia LaBruno as follows: Ms. LaBruno is employ ed by the E lizabeth City Bo ard of Education as a school psychologist and case worker. She is a member of the Child Study Team (CST). She is B.P’s Case Manager. She has been his case manager for approximately three years. B.P. attends School 30. B.P. is eligible for special education and related services under the classification Autistic. B.P. will be in seventh grade commencing in September. He attended School 30 la st school year, 2020 -2021, virtually. B.P. has an I ndividualized Education Program (IEP) dated November 10, 2020.

OAL DKT. NO. EDS 04587-21 - 3 - Re-evaluations for B.P. were du e in January 2021. I n November 2020 the District convened reclassification and IEP meetings. Both were h eld on the same date virtually. J.P. attended both meetings. At the meetings J.P. did not object to wha t was proposed. T he CST r equested re -evaluations for the following: psychological and speech. J.P. requested re-evaluations for educational, O.T., P.T. and neurological. The District agreed to do the edu cational, and thereafter agreed to do the O.T. and P.T. re- evaluations. The District did not agree to a new neurological as the CST did not believe it necessary at that time. The District was prepa red to do all the ev aluations, but the neu rological. Ms. LaBruno made requests for written parental consen t to perfo rm the re -evaluations “several several times”. J.P. agreed to some with conditions. The first condition was the re-evaluations be done virtually. The Di strict di d not a gree as the re -evaluations needed to be in p erson. The next condition was J.P. insisted on attend ing to ensure B.P.’s bio saf ety and to see that proper saf ety mea sures were in place. Again the District did not agree to J.P. attending the re -evaluations, and assured him all proper safety protocols would be in place. J.P. declined to bring B.P. to any re-evaluation. Re-evaluations are s till pending. They can be done once school reopen s and can be accomplished with weeks. FINDINGS OF FACT Based on the evidence presented at the hearing as w ell as on t he opportunity to observe the witnesses and assess their credibility, I FIND the following: 1. B.P. attends school in the Elizabeth City school district and attends School 30. 2. B.P. will be in the seventh grade, the 2021 -2022 school year, in September, 2021.

OAL DKT. NO. EDS 04587-21 - 4 - 3. B.P. is eligible for sp ecial educ ation and related services under th e classification Autistic and has an IEP dated November 10, 2021. 4. B.P. was due for re-evaluations in January 2021. 5. Two meetings were convened by the District in November 2020: an IEP meeting; and, a reclassification hearing. Both meeting s were held virtua lly. J.P. attended both. 6. The District had wanted to perform psychological and sp eech re - evaluations. 7. J.P. requested O .T., P.T. , educationa l and neurological re-evaluations also be done. 8. The District agreed to p erform the following re-evaluations: psychological; speech; educational; O.T.; P.T. The District did not agree to do a neuro logical re-evaluation as the CST did not believe it necessary at the time. 9. The District made several attempts to schedule the agre ed upon evaluations. 10. J.P. placed conditions upon the re-evaluations. At first he wanted them to be done virtually. When advised they needed to be in person h e wanted to be present during them. The District did not agree to the same. 11. J.P. never made D.P. available for the same. LEGAL ANALYSIS AND CONCLUSION N.J.A.C. 6A:14-3.8(a) states in pertinen t part: Within three years of the previous classification, a multi-disciplinary reevaluation shall be completed to determine whether the student continues to be a student with a disability. N.J.A.C. 6A:14-3.8(c) states: Prior to conducting any assessment as part of a reevaluation of a student with a disability, the district board of education shall obtain consent from the parent pursuant to N.J.A.C. 6A:14-2.3.

OAL DKT. NO. EDS 04587-21 - 5 - B.P. is due for re -evaluations. The District and the parent have agreed upon what evaluations are to be done. T he parent has failed to provide consen t for the re - evaluations. Based upon the foregoing, I CONCLUDE that Petitioner’s Due Process Petition be GRANTED. ORDER It is hereby ORDERED that Petitioner’s Due Process Petition is GRANTED, as follows: Respondent parent shall immediately sign the consent forms to permit B.P. to be evaluated for psychological; speech; educational; O.T. and P.T.; and, respondent shall fully cooperate with said evaluations and make B.P. available for the same. 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 s tudent feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Direc tor, Office of Special Education Policy and Dispute Resolution. September 20, 2021 DATE THOMAS R. BETANCOURT, ALJ Date Received at Agency: Date Mailed to Parties: db

OAL DKT. NO. EDS 04587-21 - 6 - APPENDIX Witnesses For Petitioner: Tia La Bruno For Respondent: none Exhibits For Petitioner: P-1 IEP P-2 Porras Timeline P-3 B.P. Confidential Notes P-4 Due Process Petition