Elizabeth BOE v MG obo EK – Decision on Remand | Case 10176-21 | 2022-02-07

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION (CONSOLIDATED) OAL DKT. NOS. EDS 10175-21 and EDS 10176-21 AGENCY DKT. NOS. 2020-30771 and 2020-30814 (Consolidated EDS 15882 -19 and EDS 15886-19 on Remand) M.G. ON BEHALF OF E.K., Petitioner, v. ELIZABETH CITY BOARD OF EDUCATION, Respondent. ___________________________ ELIZABETH CITY BOARD OF EDUCATION, Petitioner, v. M.G. ON BEHALF OF E.K, Respondent. ___________________________ Philip Taylor, Esq., for M.G. on behalf of E.K. (P. Taylor Legal, attorneys) Richard Flau m, Esq., for Elizabeth City Board of Education (DiFrancesco, Kunzman, Davis, Lehrer & Flaum, attorneys)

OAL DKT. NOS. EDS 10175-21 and EDS 10176-21 2 Record Closed: December 27, 2021 Decided: February 7, 2022 BEFORE SUSANA E. GUERRERO, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY M.G. filed a due proce ss petition on behalf of her child , E.K., on or around October 10, 2019, seeking a determination that E.K. is eligible for special education and related services , and that the Elizabeth City Board of Education (the Board, or the District) failed to offer E.K. FAPE for the 2017–2018, 2018–2019 and 2019–2020 school years. The parent sought an out-of-district placement, compensatory education , and other related relief . The District filed a cross -petition seeking a determination that it s evaluations of E.K. w ere appropriate , and that the parent’s request for independent evaluations should be denied. The parent’s petition was transmitted to the Office of Administrati ve Law ( OAL), where it was fil ed on November 8 , 2019 under OAL Dkt. No. EDS 15882 -19. The Board’s petition was filed on or around October 22, 2019 , and transmitted to the OAL, where it was filed on November 8, 2019 under OAL Dkt. No. EDS 15886 -19. By order dated January 22, 2020, OAL Dkt. Nos. EDS 15882 -19 and EDS 15886 -19 were consolidated. A hearing took place via Zoom over the course of four days: October 9, 16, 24 and December 7, 2020. The parties filed post-hearing briefs on April 22, 2021 and a Final Decision was issued on June 7, 2021. In the Final Decision, I concluded that the District offered E.K. a FAPE during the 2017–2018 school year and the early part of the 2018–2019 school year; but that FAPE was denied when the Distric t denied E.K. eligibility for special education and related services in March 201 9, and that the denial of FAPE continued into the 2019 –2020 school year. I also concluded that E.K. should be deemed eligible for special education and related services under the category of Emotional Regulation Impairment. The Final

OAL DKT. NOS. EDS 10175-21 and EDS 10176-21 3 Decision orders in pa rt that: E.K. be classif ied as eli gible for special education; the District develop an IEP for the 2021 –2022 school year; and that E.K. be placed in an out-of-district placement. All other relief requested by the parent was denied. By letter dated November 30, 2021, the OAL wa s informed by counsel for the parent that the District had appealed the Final Decision; the parent subsequently moved for partial dismissal of the District ’s appeal; and that the matter was remanded to the OAL for cla rification a s to the Final De cision. S pecifically, the Honorable Susan D. Wigenton, U.S.D.J. remanded Elizabeth City Board of Education v. M.G. o/b/o E.K., Dkt. No. 2:21-cv-12891 (D.N.J. Nov. 22, 2021) to the OAL “for clarification as to whether ALJ Guerrero’s ruling included the 2020–2021 school year.” (C-1.) The remanded file was returned to the OAL in December 202 1, and the petitions were issued new docket numbers (EDS 10175-21 and EDS 1 0176-21).1 On or around December 20, 2021, I held a telephone conference with Philip Taylor, Esq. and Richard Flaum, Esq. Counsel agreed that additional testimony was not needed, and that the issue to be addressed in the remand did not necessitate briefing. DISCUSSION The Honorable Susan D. Wigenton, U.S.D.J. noted in her Letter Opinion that the Court must determine whether the issue of FAPE in the 2020 –2021 schoo l year was considered in the Final De cision, and she seeks clarification as to the scope of my ruling. In response to Judge Wigenton ’s Order, I hereby clarify that the Final Decision does not include any ruling with respe ct to the 2020–2021 school year. The due process petitions were filed in 2019 , and the Prehearing Order limited the issues to be resolved, in part, to “whether the District provided FAPE for the 2017 –2018, 2018–2019 and 2019 –2020 school years. ” While testimony was offered at the hearing regarding the start of the 2020–2021 school year, and while the parent may have asserted in her post-hearing brief that E.K. was denied a FAPE during the 2020–2021 school year, I did not consider or address the issue of FAPE for the 2020–2021 school year. I , therefore, 1 This Final Decision concludes both remanded matters. I, therefore, ORDER that the matters be and hereby are consolidated.

OAL DKT. NOS. EDS 10175-21 and EDS 10176-21 4 CONCLUDE that the scope of the Final Decision does not include a determination as to whether a FAPE was offered or provided to E.K. by the District during the 2020 –2021 school year. This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2021) 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 (2021). If the parent or adult s tudent feels that this decision is not being fully implem ented with respect to program or services, this concern should be communicated in writing to the Directo r, Office of Special Education Policy and Dispute Resolution. February 7, 2022 DATE SUSANA E. GUERRERO, ALJ Date Received at Agency Date Mailed to Parties: jb

OAL DKT. NOS. EDS 10175-21 and EDS 10176-21 5 APPENDIX LIST OF WITNESSES For Parent: None For Board: None LIST OF EXHIBITS IN EVIDENCE For Court: C-1 November 30, 2021 letter to the OAL from Philip T. Taylor, Esq.; with November 22, 2021 Letter Opinion and Order by The Honorable Susan D. Wigenton, U.S.D.J.