Jackson Township BOE v AC and CR obo SC | Case 01710-23 | 2023-03-08

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION EMERGENT RELIEF OAL DKT. NO. EDS 01710-23 AGY REF NO. 2023-35518 JACKSON TOWNSHIP BOARD OF EDUCATION, Petitioner, v. A.C. AND C.R. ON BEHALF OF S.C., Respondents. Andrew W. Li, Esq. and Curtis D’Costa, Esq., for petitioner (Comegno Law Group, attorneys) A.C. and C.R., respondents, pro se Record Closed: March 7, 2023 Decided: March 8, 2023 BEFORE DEAN J. BUONO, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioners filed a due process petition and motion for emergent relief with the Office of Special Education (OSE) in the New Jersey Department of Educa tion (DOE).

OAL DKT. NO. EDS 01710-23 2 The contested ma tter was t ransferred to the Office of Ad ministrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on March 1, 2023. The motion for emergent relief seeks an order that would place the student with a disability in an interim alternative placement for not more than forty-five calendar days because it is extremely dangerous for the student to be in his current placement, as the student poses a danger to himself. The Board and the parents did not agree to an appropriate placement therefore the request for emergent relief was heard on March 7, 2023. A.C. who is the father appeared at the hearing but C.R. who is the mother of S.C. did not appear. FACTUAL BACKGROUND Petitioner A.C. is the father and C.R. is the moth er of S.C. who is a three -year-old preschool student (D.O.B. 12/05/ 2019) who receives special education and related services under the classification of “Preschool Child with a Disability.” This is articulated in the February 21, 2023, IEP attached to the application and incorporated as Exhibit “1.” Petitioner argues that S.C. demonstrates frequent self -injurious behaviors (SIB) at school that place S.C. at extreme risk of permanent, irreversible brain dama ge. From February 1 to February 16, 2023, alone, S.C. demonstrated nearly 1,000 documented instances of SIB at scho ol. Specifically, S.C. forcefully and unpredictably batters his own head again st furniture, the ground, and walls. This behavior is lai d o ut in the aggression data summary attached to the petition as Exhibit “2.” During this two -week period, S.C. injure d several staff members who we re attempting to safely intervene in S.C.’s SIB, including a paraprofessional, S.C.’s case manager, and S.C.’s teacher. No fewer than three staff members have sustained concussions requiring urgent medical care. That in formation is set forth in the staff injury reports attached hereto and incorporated herein as Exhibit “3.” On February 21, 2023, the Di strict’s Child St udy Team (“CST”) and S.C.’s parents convened an emergency IEP meeting to propose that S.C. b e placed on home

OAL DKT. NO. EDS 01710-23 3 instruction pending an out-of-district placement to address S.C.’s needs. Further, the CST recommended that S.C. receive immediate care at an in-patient medical facility. At the meeting, the parents did not oppose the District’s proposed co urse of actio n. See Exhibit “1.” However, on the morning of February 24, 20 23, the parents attempted to drop off S.C. at school. District offi cials reiterated to the parents that it was too dangerous for S.C. to attend school in person at this time. The same Friday afternoon, C.R. called District officials stat ing that she plans on bringing S.C. to sch ool next week and that she and S.C. ’s father do not agree to home instruction pending an out-of- district placement. Phone call documentation was attached to the petition as Exhibit “4.” The following Monday, February 27, 2023, C.R. again tried to brin g S.C. to school and reite rated her disagreement with the District regarding whether S.C. should receive home instruction in an interim alternative education al setting. C.R. sent a letter that was attached to the petition as Exhibit “5.” To ensure that S.C. receives the appropriate care and an appropriate placement, the District has sought parents’ consent to exchange S.C.’s student records and protected heal th informati on ( “PHI”) with agencies and individuals. However, the parents have not provided their consent. The PHI forms are petitioner’s Exhibit “6.” Respondents Respondent, A.C. claims that S.C. received a neurologic al exam but was unaware if they could “fix the problem” of hitting. “The district doesn’t even want him to go to school to have a regular education.” “We don ’t believe he can sit in front of a computer.” S.C. doesn’t believe that home education is appropriate. “They did all these evaluations and determined that he can sit in a classroom.” However, A.C. agreed to sign the forms for release and talk to Dr. Taylor , Director of Special Services and Ms. Stano, the BCBA.

OAL DKT. NO. EDS 01710-23 4 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, incl uding manifestation determ inations and determinations of interim alternate education settings; iii. Issues concerning p lacement pending outcome of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. As the presen t matter concerns the issu es of a break in services, discipline and placement pending the outcome of due process p roceedings, petitioner is certainly entitled to seek emergent relief. The New Jersey Supreme Court has set forth a four -prong test for determ ining whether an applicant is entitled to emergent relief. 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). The four factors (“the Factors”), include: 1. The petitioner will suffer irrepara ble harm if the requested relief is not granted; 2. The legal right underlying petitioner's claim is settled; 3. The petitioner h as a likelihood of prevailing on the merits of the underlying claim; and 4. When the equities and interests of the parties a re balanced, the petitioner will su ffer greater harm than the

OAL DKT. NO. EDS 01710-23 5 respondent will suffer i f the reques ted relief is no t granted. The m oving party bears the burden of proving each of the Crowe elements “clearly and convincingly.” Waste Mgmt. of N.J. v. Union County Util. Auth. , 399 N.J. Super. 508, 520 (App. Div. 2008). A review of the four factors is in order. Factor One. The petitioner will suffer irreparable harm if the requested rel ief is not granted. Staff are also at risk. S.C. is also at r isk, as the child has exhibited self - injurious be havior. The continued behaviors need to be addressed, and an IEP developed to address th em. Petitioner is required to maintain the safety of its stude nts and staff, and to ensure an atmosphere conducive to le arning for its students. S.C.’s continued att endance in school will greatly diminish petitioner’s abili ty to provide the same. Factor Two. The legal right underlying petit ioner’s claim is settled. Petitioner is responsible for maintaini ng a s afe sch ool for its st udents and s taff. N.J.A.C. 6A:14 - 2.8(f) authorizes the removal of a student whe n the student caused a serio us bodily injury under 20 U.S.C. §1415(k). N.J.S.A. 18A:37-13 states in pertinent part “. . . a safe and civil environment in school is ne cessary for students to le arn and achieve high academic standards; harassment, intimidation or bullying, like other disruptive or violent behaviors, is conduct that disrupts bot h a student’s ability to learn and a school’s ability to educate its students in a safe environment . . .” Factor Three. Petitioner has a likelihood of prevailing on the merit s o f the underlying claim. Petitioner must a ddress S.C.’s behavior and his disabi lity in developing an appropriate IEP. The only avenue available is to evaluate S.C. and determine an appropriate placement. In this regard , petitioner is likely to prevail on the merits.

OAL DKT. NO. EDS 01710-23 6 Factor Fou r. When the equi ties and interests of the parties a re balanced, the petitioner will suffer greater harm than the resp ondents will suffer if the requested relief will not be granted. Here, both the petitioner and respondent will suffer irreparable harm if the requested relief is not granted because, if granted, S.C. will continue to receive an education via home instruction pending evaluation. This is the least restrictive environment. He needs to ha ve evaluations do ne and a prop er placemen t ma de according to his needs. The petitioner, i f not granted, will be unable to ensure the safety of its students and staff, and the ability of its students, particularly the classmates of S.C., from receiving an appropriate education in a safe and civil environment. N.J.A.C. § 6A :14-2.7(n) provid es: “To remove a student with a disability when district board of education personnel maintain that it is dangerous for th e student to be in the current placement and the parent and district board of education cannot agree to an appropriat e placement, the district board of education shall request an exped ited hearing. The administrative law judge may order a change in the pl acement of the student with a disability to an appropriate interim alternativ e placement f or not more than 45 calendar days [. . .]” The OAL has previously granted emergent relief in similar circumstances. See Gloucester City Bd. of Educ. , OAL DKT. NO. E DS 0 9165-15 (2015), Wayne Twp. Bd. of Educ. v. G.G. and S.W. ex.rel. G .G., OAL DKT. NO. EDS 05519-17 (2017) , and Washington Twp. Bd. of Educ. v. H .M. ex.rel. , OAL DKT NO . EDS 08328-19 (2019). Based upon the foregoing, I CONCLUDE that petitioner’s request for emergent relief be GRANTED. ORDER It is hereby ORDERED that petitioner’s request for emergent relief is GRANTED. IT IS FURTHER ORDERED that S.C. be placed in an appropriate interim alternativ e education setting (IAES) of home instruction for forty-five calendar days because S.C.’s current placement is substantially likely t o result in injury t o S.C. or others. IT IS FURTHER ORDERED that the parents are compelled to enable the District to obtain,

OAL DKT. NO. EDS 01710-23 7 release, and/or exchange S.C.’s student records and p rotected hea lth information (“PHI”) with the agencies or individuals named on the forms in Exhibit “6.” This decision on appl ication for emerg ency relief shall remain in effect until the issuance of the decision on the merits in this matte r. The parties will be notified of the scheduled he aring dates. If the parent or a dult stud ent feels that this decision is not being fully i mplemented with r espect to program or services, this concern should be communicated in writing to the Director, Office of Special Education. March 8, 2023 Date DEAN J. BUONO, ALJ Date Received at Agency Date Mailed to Parties: DJB/cb

OAL DKT. NO. EDS 01710-23 8 APPENDIX List of Moving Papers and Exhibits For petitioner Due Process Petition Brief in Support of Application for Emergent Relief Certification of Dr. Teresa Herrero-Taylor Exhibits 1 through 6 For respondents None