KM obo VM v Egg Harbor City BOE | Case 01321-23 | 2023-02-15

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION GRANTING EMERGENT RELIEF OAL DKT. NO. EDS 01321-23 AGENCY DKT. NO. 2023-35442 K.M. ON BEHALF OF V.M., Petitioner, v. EGG HARBOR CITY BOARD OF EDUCATION, Respondent. Jeff Cox, Parent Advocate, for petitioner pursuant to N.J.A.C. 1:1-5.4(a)(7) Ronald W. Shali, Esq., for respondent Record Closed: February 15, 2023 Decided: February 15, 2023 BEFORE SARAH G. CROWLEY, ALJ: STATEMENT OF THE CASE Petitioner, K.M., on be half of he r daughter, V.M., filed a request for e mergent relief seeking an o rder directing the respondent Egg Harbor C ity Board of Education (District or respondent), to place the petitioner back in school wi th appropriate supports consistent with her last agreed upon I ndividual Education Plan (IEP). T here is a

OAL DKT. NO. EDS 01321-23 2 pending due process complaint addressing the services that the petitioner was not receiving, and the pending out-of-district placement issues. PROCEDURAL HISTORY On or about February 9, 2023, petitioner filed a request for emergent relief and a due process petition with the New Jersey Department of Educ ation, Office of Special Education (OSE). The OSE transmitted the emergent request to t he Office of Administrative L aw (OAL), for hearing as an em ergent contested matter. 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 February 15, 2023, via Zoom remote v ideo platform and t he re cord closed. FACTUAL DISCUSSION AND FINDINGS The record before me consists of the two- page Office of S pecial Education Request for Emergent Relief . The unders igned received no other papers in support o f the application or in opposition to the re quest for relief. Based on th e documents and the representations from counsel on the record before me today, I FIND the following as FACT: 1. V.M. is currently nine years old, and in the fourth grade in the Egg Harbor City School District. 2. V.M. has been dee med eligible for Special Educat ion Services and the last agreed upon IEP places her in district with supports. 3. V.M. was escorted out of school on January 6, 2023, and has received no home instruction since then. The reasons for this action are unclear and there was no proc edural due process provided in connection with the unilateral decision by the District to remove the student from school.

OAL DKT. NO. EDS 01321-23 3 4. V.M. has not received any home instruction and an out-of-district placement has not been agreed upon by the parties. The only instruction that was offered was after 3:00 pm when she has other therapeutic and behavior services provided. 5. A due process petition had been filed relating to the need for additional services in district or to explore out-of-district placement. During the Zoom argume nt o n the record, the parties agreed through their representatives t hat the child would re turn to school consistent with the last agreed upon IEP which was “stay put ” in this case . The parties also agreed that they would continue to explor e out-of-district placements and address additional s upports in the pending due process proceeding. The district also agreed that any truancy action would be ceased consistent with the return of V.M. to school. LEGAL ANALYSIS In special education matter s, e mergent rel ief shall only be requ ested for the following issues: i. Issues involving a break in the delivery of services; ii. Issues involving disciplin ary action, including manifestation deter minations and determinati ons of interim alternate educational settings; iii. Issues con cerning placement pending the outcome of due process proceedings; and iv. Issues involving graduation or participation in gr aduation ceremonies. [N.J.A.C. 6A:14-2.7(r)(1).] Here, the petitioner sought emergent relief due to the break in services for V.P. and to seek a return of V.M. to school consistent with last agreed upon IEP. Accordingly, I CONCLUDE that the petitioner has met the requirements for emergent

OAL DKT. NO. EDS 01321-23 4 relief consistent with the provisions of N.J.A.C. 6A:14-2.7(r)(1) and under Crowe v. De Gioia, 90 N.J. 126 , 132 –35 (1982). The specifics of these requirements were not argued, nor is a detailed analysis provided by the undersigned, as the parties agreed to immediately place the child back in district, consistent with the last agreed u pon IEP. I make no determination as to a “ prevailing party,” as the District was in good faith trying to work with the family who initially requested an out-of-district placement. ORDER I hereby ORDER that the petitioner’s request for emergent relief seeking an order directing the District to place the child back in school in the District is GRANTED. 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 hav ing been requested by the p arent, this matter is hereby returned to the Department of E ducation for a l ocal resolution session, pursuant to 20 U.S.C. § 1415(f)(1)(B)(i). If the parent or adult student feels t hat this deci sion is not being fully imple mented with respect to program or services, this conc ern should be communicated in writing to the D irector, Office of Special Education Policy and Dispute Resolution. February 15, 2023 DATE SARAH G. CROWLEY, ALJ Date Received at Agency Date Mailed to Parties: SGC/nn