JL obo JL v Hamilton Township BOE | Case 00693-23 | 2023-01-30

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION DENYING EMERGENT RELIEF OAL DKT. NO. EDS 00693-23 AGENCY DKT. NO. 2023-35384 J.L. ON BEHALF OF J.L., Petitioner, v. HAMILTON TOWNSHIP BOARD OF EDUCATION, Respondent. __________________________ Staci J. Greenwald, Esq., for petitioner (Sussan, Greenwald & Wesler , attorneys) Michael A. Pattanite , Jr., Esq., for respondent (Lenox, Socey, Formidoni, Giordano, Cooley, Lang& Casey , attorneys) Record Closed: January 27, 2023 Decided: January 30, 2023 BEFORE SUSAN L. OLGIATI, ALJ: STATEMENT OF THE CASE Petitioner, J.L., on behalf of he r son J .L.1 filed a request for emergent relie f seeking an Order directing the respo ndent, Hamilton Township Board of Education (hereinafter referred to as the “District”) to participa te in an intake at Garden Academy 1 As petitioner and her son share the same initials, petitioner J.L. is referred to herein as (petitioner) and her son is referred to as J.L

OAL DKT. NO. EDS 00693-23 2 and to provide placement there pending resolution of the underlying due process proceeding. PROCEDURAL HISTORY On or about January 20, 2023, petitioner filed a request for emergent relief and a due process petition with the New Jersey Department of Education, Office of Special Education (OSE). The OSE transmitted the emergent request to t he Office of Administrative L aw (OAL), for hearing as an emergent contested matter. 2 N.J.S.A. 52:14B-1 to B-15; N.J.S.A. 52:14F-1 to F-23. Oral argument on the emergent request was heard on January 27, 2023, via Zoom remote video platform and the record closed. FACTUAL DISCUSSION AND FINDINGS Based on the record before me including the parties’ written submissions in support of and in opposition to the request for emergent relief, the following facts are not in dispute. Accordingly, I FIND them as FACT: J.L. is currently sixteen years old (D.O.B. Se ptember 200 6). He is eligible for special education and related services under the classification category of Autism. J.L. currently a ttends school at the Mercer County Special Services School District—an out of district placement. He has been in this placement since 2019. Petitioner filed a prior due process petition (OAL Dkt. N o. EDS 08660-21) seeking placement in an appropriate out of district program. The parties subsequently entered into a Settlement Agreement (Agreement) in that matter wherein the District agreed to send applications and relevant materials to Princeton Child Development Institute ( PCDI) and Garden Academy for place ment of J.L. beginning in July or September 2022. 2 The transmittal notice to the OAL provides that “Only Emergent Relief” is being transmitted at this time.

OAL DKT. NO. EDS 00693-23 3 The District agreed to send the appropriate document ation to the two schools in February 2022 and again in May 2022. The parties agreed that if J.L. was accepted at either PCDI or Ga rden Academy, the District would amen d his IEP to reflect that placement for the 2022 -2023 school year (SY). The parties also agreed that if either PCDI or Garden A cademy did n ot have a placement for J.L. in July or September 2022, they would meet in June to discuss J.L.’s IEP and programing for the 2022-2023 SY.3 The parties further agreed and acknowledged that the Agreement was made without admission of liability or responsibility by any party and that the Agr eement did not constitute a n admission by the Dist rict that any modi fications, accommodations, supports or services provided by the District were not appropriate. The Agreement was approved in a March 4, 2022, Final Decision issued by the undersigned. The District sent the agreed upon materials to both PCDI and G arden Academy in February and May 2022, however, neither school had an age -appropriate opening for J.L. at the time. As a result, J.L. has remained in his placement at MCSSSD. Garden Academy recently advised of a potential age-appropriate opening and sought to schedule an intake during January 2023. LEGAL ANALYSIS In special education matter s, e mergent relief shall only be requ ested for the following issues: i. Issues involving a break in the delivery of services; 3 The parties acknowledge that the referenced meeting occurred.

OAL DKT. NO. EDS 00693-23 4 ii. Issues involving disciplin ary action, includ ing manifestation d eterminations and determinati ons of interim alternate educational settings; iii. Issues concerning placement pending the outcome of due process proceedings; and iv. Issues involvi ng graduation o r participation in graduation ceremonies. [N.J.A.C. 6A:14-2.7(r)(1).] Here, t he petitioner seeks emergent relief relating to placement pending the outcome of the underlying due process proceeding. Accordingly, I CONCLUDE that the request for emergent relief is consistent with the provisions of N.J.A.C. 6A:14-2.7(r)(1) and appropriate for consideration herein. Under Crowe v. De Gi oia, 90 N.J. 126 , 132 –35 (1982), and N.J.A.C. 1:6A - 12.1(e), emergency relief may be gr anted if the judge determines from the proofs that each of the following elements have been established: i. The petitioner w ill suffer irreparable harm i f the requested relief is not granted; ii. The legal right u nderlying the petitioner’s claim is settled; iii. The petitioner has a likelihood of pr evailing o n t he merits of the underlying claim; and iv. When th e equities and interests of the parti es are balanced, the p etitioner wi ll suffer greater harm than the respondent will suffer if the requested relief is not granted. The moving party must satisfy all four prongs of this standard to establish an entitlement to emergent relief. As to the first prong of the standard, petitioner must show that irreparable harm will result if emergent relief is not granted. “Irreparable harm” is defined as the type of harm “that cannot be redressed adequately by monetary damages.” Crowe, 90 N.J. at 132-33. In addition, the irreparable harm standard contemplates that the harm be both substantial

OAL DKT. NO. EDS 00693-23 5 and immediate. Subcarrier Communications v. Day, 299 N.J. Super. 634, 638 (App. Div. 1977). Petitioner contends that J.L. will suffer irreparable harm if the requested relief is not granted because his c urrent program is not appropriate to address his unique needs. As a result, petitioner contend s that J.L . has regressed in his current placement. In support of her position, petitioner appears to generally rely on the neuropsychological evaluation of Dr. Marcantuono, PhD, FACFE, which found that “J.L. is not able to acquire information through more traditional special education methods as what is currently being provided to him in the [MCSSSD]” and recommended, among other things , that J.L. require d a s tructured ac ademic environment and a smaller environment that provided 1:1 instruction in a distra ction free setting.4 Petitioner further contends that Garden Academy ha s long waiting lists and extremely limited opportunities for older students . Therefore, if the District does not participate in the requested intake at this time, J.L. is at “high risk of losing this placement permanently.” Petitioner contends she is financially unable to pay for J.L .’s placement at Garden Academy. At oral argument, p etitioner, through counsel, further argued that Garden Academy has appropriate post twenty-one-year-old programming for which J.L. is also at risk of losing. Petitioner additionally argues that the District’s refusal to participate in the intake with Garden Academy is not in compliance with the terms of the Settlement Agreement and constitutes a violation of the Agree ment. At oral argument, petitioner’s counsel, further argued that the Agreement provided for the placement of J.L . during the 2022 - 2023 SY and that the terms of the Agreement should not be limited to the four corners of the document. Finally, petitioner urges that monetary damages would not compensate J.L. for the educational time h e “stands to lose ” and for the social, emotional, behavioral, and academic impact the deprivation of an appropriate program will continue to have on J.L. 4 The report is undated but reflect that J.L. was fourteen years of age and that the dates of services were 11/04/2020, 12/17/2020, 12/18/2020, and 1/21/2021.

OAL DKT. NO. EDS 00693-23 6 The District argues that it fulfilled its obligations under the Agreement, and that there is nothing pre venting the pe titioner from forwarding J.L.’s stud ent recor ds and unilaterally placing J.L. at Garden Academy.5 It maintains that J.L.’s current placement at MCSSSD i s appropriate and that it does not support J.L.’s current potential placement at Garden Academy. Finally, the Distri ct argues there is no legal au thority for the requested relief. Here, despite petitioner’s contentions, she presented no evidence of regression or of the other harm alleged. Additionally, petitioner’s claims that J.L. is at high risk of permanently lo sing the opportunity for p lacement at Garden Ac ademy and that he is also at risk of losing the opportunity for participation in Garden Academy’s post twenty- one programing are speculative and relate to potential future harm. Thus, petitioner has failed to demonstrate that the harm alleged is either immediate or substantial. Further,, petitioner’s arguments regarding non-compliance with the Settlement Agreement are unpersuasive.6 Accordingly, I CONCLUDE that petitioner ha s f ailed to demonstrate irreparable harm. As to the second and third prongs of the standard for emergent relief, the parties are in agreement that petitioner has a settled legal right to a free and appropriate public education ( FAPE). However, the question of wh ether J. L.’s current prog ram and placement at MCSS SD provide him with FAPE and, if not, whether he is en titled to placement at Garden Ac ademy can only be determined through a f ull evidentiary plenary hearing. Petitioner also argues that the District previously agreed to amend J.L.’s IEP if he were acc epted at Garden A cademy in the 202 2-2023 SY and contends that the District’s prior agre ement indicates its belief that Garden Academy was an ap propriate placement. These arguments are however unpersuasive as they are unsupported by any legal au thority and appear to be in conflict with, or an expansion of , the express 5 At oral argument, petitioner’s attorney represented that Garden Academy did not maintain J.L.’s records that were previously provided by the District as there was no available placement at the time. The parties further acknowledged and agreed that Garden Academy would not consider J.L. ’s records if the District did not agree to support/fund the placement. 6 Additionally, to the extent petitioner argues a violation of, or non-compliance with, the Agreement/ Final Decision approving same, N.J.A.C. 6A:14-2.7(t) o utlines the appropriate mechanism for seeking enforcement.

OAL DKT. NO. EDS 00693-23 7 terms of t he Agreement .7 Accordingly, I CONCLUDE the petitioner has f ailed to demonstrate that the legal right of the underlying claim is settled . I also CONCLUDE that petitioner has failed to demonstrate a re asonable pr obability of success on the merits. As to the fourth prong of the standard, petitioner argues that a balancing of the hardships favors J.L. Petitioner contends there is no dispute as to J.L. ’s need for the specialized programing and supports offered at Garden Academy. She argues that J.L. will continue to decline and suffer academically, behaviorally, socially, and emotionally if he were to remain in his current placement. Petitioner further contends that the District is already paying for J.L.’s out of district placement at MCSSSD and that it would be no great burden for the District to pay for the cost of placement at Garden Academy.8 The District argues it will suffer the greater harm because the requested relief will force it to participate in a placement it does not support. While the District previously agreed to a placement of J.L . at Garden Ac ademy beginning in J uly or Se ptember 2022, it contends that his placement at MCSSSD is appropriate and therefore does not support his current possible p lacement at Gar den Academy. Thus, contrary to petition er’s arguments there is a dispute as to J.L.’s need for the programing and supports at Garden Ac ademy. Having considered the equities and int erests of the parties and for the reasons prev iously set forth herein, I CONCLUDE that petitioner has failed to demonstrate that J.L. will suffer greater harm if the requested emergent relief is not granted pending the outcome of the underlying due process proceeding. Based on the above , I further CONCLUDE that the petitioner has not satisfied the standard for emergent relief and that her request should therefore be DENIED. 7 See footnote 5. 8 There is no information in the re cord before me of the cost to the District relating t o J.L.’s current placement or his possible placement at Garden Academy.

OAL DKT. NO. EDS 00693-23 8 ORDER I hereby ORDER that the petitioner’s request for emergent relief seeking an Order directing the District to participate in an intake and provide placement at Gard en Academy pending resolution of the due process proceeding, is DENIED. This decision on application for emergency relief shall remain in effect until the issuance of the decision on the merits in this matter. The hearing having been requested by the parents, this matter is hereby returned to the Department of Education for a l ocal resolution session, pursuant to 20 U.S.C. § 1415(f)(1)(B)(i). If the parents 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 the D irector, Office of Special Education Policy and Disput e Resolution. January 30, 2023 DATE SUSAN L. OLGIATI, ALJ Date Received at Agency January 30, 2023 Date Mailed to Parties: January 30, 2023 SLO/dw