KP obo AP v Manville Borough BOE OSEPP Agency Reference Number 2021-33021ER | Case 06076-21 | 2021-11-17

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW ORDER EMERGENT RELIEF OAL DKT. NO. EDS 06076-21 AGENCY DKT. NO. 2021- 33021 K.P. on behalf of A.P., Petitioner, v. MANVILLE BOROUGH BOARD OF EDUCATION, SOMERSET COUNTY, Respondent. K.P., on behalf of A.P., petitioner, pro se David B. Rubin, Esq., for respondent (David Rubin, P.C., attorneys) BEFORE MARY ANN BOGAN, ALJ: Manville Borough Board o f Educati on, ( District) applied for emergent relief on behalf of the District to seek an order authorizing the District to proceed with a functional behavioral analysis (FBA) and directing A.P.’s parents to cooperate in any aspect of the FBA requiring their involvement. PROCEDURAL HISTORY On or about June 21, 2021, petitioner filed a complaint for due process with the New Jersey Department of Education, Office of Special Education Policy and Dispute Resolution

OAL DKT. NO. EDS 06076-21 2 challenging the June 14, 2021, individualized education program (IEP) proposed by the child study team. The petition states that petitioner seeks to maintain current program and placement in the general education setting. On or about June 29, 2021, petitioner filed a request for emergent relief seeking an immediate stay-put of the current program and placement in general education. On the same date, the emergent petition was transmitted to the Office of Administrative Law (OAL). The Honorable Susan L. Olgiati conducted oral argument on July 1, 2021, and granted the requested relief in an order issued on July 2, 2021. The Due Process hearing was conducted by the undersigned on October 6, 2021. The record closed on November 15, 2021. Thereafter the respondent filed this request for emergent relief, and it was scheduled for oral argument on November 15, 2021. Although A.P.’s mother was the sole petitioner for the due process petition, A.P .’s father M.P ., after being noticed, participated in the oral argument for the current emergent relief application. The record closed on the same day, FACTUAL DISCUSSION A.P. is a twelve-year-old seventh grad e student who is e ligible for special education services under the classification of autistic. He currently attends A lexander Batcho Intermediate School in the District. The District enclosed a certification of Laura D. ’Amato, Director of Special Services, in support of the District’s emergent relief application. By way of background, at the due process hearing on October 6, 2021, A .P.’s case manager, Sandra Peckhardt, testified that the District was prepared to conduct an FBA now that A.P. was back into in-person instruction. The District found t his a dditional assessment particularly necessary because A.P.’s family declined to send him to an extended school year programing that the District offered over the past summer, and because he had been attending school on remote instruction since March 2020. Around the time of the due process hearing, written consent was provided by K.P. for the FBA, and the District’s Board-Certified Behavior Analyst (BCBA) began the FBA. Thereafter, A.P.’s father M.P. notified the District on or around October 27, 2021, in what the District determined to be revocation of consent for the FBA. The District

OAL DKT. NO. EDS 06076-21 3 determined that if one parent revo kes consent given by the other parent, a Dis trict is required to honor tha t revocation. In that the District was required to honor the father’s revocation of K.P.’s prior consent, the Board notified the parents that it believed that an FBA is in A.P.’s best interest; however, until consent was granted by both parents or an appropriate court order was issued resolving the d isagreement, the FBA would not be conducted. Sometime thereafter, K. P. sent an email which seem ed to rever se her original position consenting to the FBA going forward. The certification of Laura D’Amato, Director of Special Services, in support of the District’s application sets forth that t he District “was committed to identifying and addressing any behaviors in the school setting that might impede A.P.’s progress.” The District urges that the “parents’ refusal to allow o ur BCBA to cond uct an FBA to get to the bottom of A.P.’s behaviors issues is sabotaging our efforts to provide hi m with an appropriate education. ” The District points out th at A.P. was making progress and “acclimating himself to the school envi ronment” at the time of th e hearing. Once the mother’s consent was received on October 7th, the BCBA began working on the FBA. Thereafter on October 20, 202 1, there was an “abrupt increase” in negative behaviors. Ms. D’Amato’s certification states that A.P. appeared “easily agitated”, he “flipped over a table and screamed in a hi gh-pitched voice because another class was making too much noise.” The school called the father to pi ck up A.P. When the father arrived, he reported to the case manager and the building principal that he was now living in a hotel with his children due to a change in the home envi ronment. Several incidences followed, for ex ample, when on October 27 th, A. P. sta rted yelling at a female autistic student, walking towards her in an aggressive manner “balling” his fists and ye lling at her to “shut up .” The b ehavior was so con cerning that staff held him back beca use “they were af raid he was going to be physical with her.” A.P. also “slammed the door” of a class playing music. The principal intervened. When he brought A.P. to the office, A.P. took off his mas k and spit all over the table. Ms. D’Amato asserts that without the FBA, the District is unable t o identify the “triggers” of A.P.’s school-based behaviors to develop a behavior intervention plan. M.P. contends that the “timing” of the FBA was “skeptical” because it was raised at the ti me when the due process hearing w as over, and “all of a sudden” the District

OAL DKT. NO. EDS 06076-21 4 requests that it perfo rm an FBA. Moreover, M.P. is conce rned that the District “suddenly hired a new person” instead of conducting an FBA with a BCBA who has a relationship with A.P. He further asserts that “in my gut” the District does not have good intentions and the District never demonstrated any “respect” by asking him abo ut the FBA. A.P.’s mother, K.P. indicated that she did not ha ve a response to t he emergent petition, and she understood why it was necessary to conduct.1 The District responded that the FBA must be conducted in the school setting, so it was “timed” to take place after the student returned to in person learning. The FBA was scheduled to take pla ce and a short time after th e revocation of consent by M.P., the District filed the em ergent peti tion. The District explained that the regulations provide for parental rights to request an independent evaluation under certa in circumstances but only after the District completes its assessment. LEGAL ARGUMENT AND CONCLUSION As set f orth i n N .J.A.C. 1:6A -12.1(e), an application for emergent re lief will be granted only if it meets the following four requirements: 1. The [District] will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying the [District’s] claim is settled; 3. The [District] [has] a likelihood of prevailing on the merits of the underlying claim; and 4. When the equit ies a nd inte rests of the parties are balanced, the [District] will suffer greater harm than the [petitioner] will suffer if the requested relief is not granted. See also N.J.A.C. 1:1 -12.6, and Crowe v. DeGioia , 102 N.J. 50 (1986), which echoes the regulatory standard for this extraordinary relie f. It is well established that a moving party must satisfy all four prongs of the r egulatory standard to establish an entitlement to emergent relief. See also Crowe at 132-35. 1 K.P.’s request to introduce into evidence recordings of IEP meetings held in October 2019, October

OAL DKT. NO. EDS 06076-21 5 Turning to the emergent criteria, it is well settled that relief should not be granted except “when necessary to prevent irreparable harm.” Crowe 90 N.J. at 13 2. In this regard, harm is generally considered irreparable if it cannot be adequately redressed by monetary damages . Id. at 132 -33. Moreover, the harm must be substantia l and immediate. Judice’s Sunshine Pontiac, Inc. v. Gen. Motors Corp., 418 F. Supp. 1212, 1218 (D.N.J. 1976) (citation omitted) . More than a r isk of irreparable harm mu st be demonstrated. Continental Group, Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (D.N.J. 1980) . The r equisite for injunctive relief is a “clear showing of immediate irreparable injury,” or a “‘presently existing actual threat; (an injunction) may not be used simply to eliminate a possibility of a remote future injury, or a future invasi on of rights, be th ose rights protected by statute or by common law.’ ” Ibid. (citation om itted.) Irreparable harm in special education clas ses has been demonstrated when there is a substantial risk of physical inju ry to the child, or others, or when ther e is a significant interruption or termination of educational service s. M.H. o/b/o N.H. v. Milltown Board of Education, 2003 WL 21721069, OAL Dkt. No. EDS 4166-03. Emergent relief may be granted when parents refuse to c onsent without good cause to assessments that the Dis trict may find are necessary . Washington Township Board of Education v. C.L. and A.L. o/b/o N.L ., OAL Dkt. No. EDS 068 55-17 Agency Dkt. 2017 -26211 (May 22, 2 017). In the instan t matter, there is a substantial risk of physical injury to the child or others if the FBA is not conducted. A parents ’ unreasonable refusal t o consent to an assessment is grounds for emergent relief. Gloucester City Bd. Of Educ. V. A.H. o/b/o K.S. OAL Dkt. No. EDS. 09165-15, (July 14, 2015). In addition, t he failure to conduct necessary evaluatio ns “will also place the student at risk, as any lapse in special services may well cause the child to regress.” Id. Here, the District’s assertion that there is an urgent need to conduct the FBA to determine the triggers for A.P. ’s outbursts at school so that appropriate measures can be taken to address them, is persuasive. The District set forth compelling evidence that 2020 and June 2021 was denied since the recordings are not relevant.

OAL DKT. NO. EDS 06076-21 6 A.P. has demonstrated a disturbing pattern of behavior and these instances of behavior were not disputed. Accordingly, I CONCLUDE the District’s request for eme rgent rel ief has established a clear showing of immediate irreparable harm if the requested relief is not granted. As to the issue of whether the legal right underlying the District’s claim is settled, according to N.J.A.C. 6A:14-3. (b), once the child s tudy team determines that an evaluation is warranted, the district must request and obtain parental consent to evaluate. If the parent refuses to provide consent to conduct the evaluation, the district may file for a due process hearing to compel the evalu ation. N.J.A.C. 6A:14-3.4(c). I CONCLUDE the District has demonstrated that the legal right under lying the District’s claim is settled. Regarding the District’s likelihood of prev ailing on the merits, there are no material facts in di spute that would alt er the District’s likelihood of prev ailing on t he merits. As previously referred to, emergent relief is likely to be granted when a parent(s) refuses to cooperate in the evaluation process . Washington Twp. Bo ard of Education. Accordingly, I CONCLUDE the District has met the third prong of the emergent relief standard as to whether the District has a likelihood of prevailing on the merits of the underlying claim . Here there are no material facts in d ispute that oppose District’s likelihood of success. Lastly, the District must show that whe n the equities and interests o f the parties are balanced, the D istrict will suffer greater harm than the parents will suffer if the requested relief is not gra nted. The District reported undisputed data th at A.P.’s acting out behaviors are risky and ma y likely affect his ability to access his education. Here, the parents have not demonstrated that they would be prejudiced in any manner by the FBA being conducted. Furthermore, the father’s concern for an independent FBA may be requested under certain circumstances as set forth.

OAL DKT. NO. EDS 06076-21 7 Under N.J.A.C. 6A:14-2.5(c): Upon completion of an initial evaluation or reevaluation, a parent may request an independent evaluation if t here is disagreement with the initial evaluatio n or a reevaluation provided by a district board of education . A parent shall be entitled to only one independent evaluation at public expense each time the district board of education conducts an ini tial eval uation or reevaluation with w hich the parent disagrees. The req uest for an i ndependent evaluation shall specify the assessment(s) the parent is seeking as part of the independent evaluation request. The school district shall pay for the IEE “unless the school district initiates a due process hearing t o show that its evaluation is appropriate and a final determination to that effect is made following the hearing.” N.J.A.C. 6A:14 -2.5(c) and (c)(1) . N.J.A.C. 6A:14-2.5(c)(1)(ii) specifies that “[n]ot later th an 20 calendar days after rec eipt of the parental request for the independent evaluation, the school district shall request the due process hearing.” Thus, “[t]he school district shall not delay either providing the independent evaluation or initiating a due process hearing to defend the school district's evaluation.” N.J.A.C. 6A:14-2.5(c)(5). I CONCLUDE that when the eq uities are balanced, the District is suffering and will suffer greater harm than then parents if the Emergent Petition is not granted. Therefore, I CONCLUDE that the District has met the four pron gs of th e Crowe standards required for emergent relief pursuant to N.J.A.C. 1:6A -12.1 (e) and that the relief shall be GRANTED. ORDER It is hereby ORDERED that the District shall proceed w ith the functional behavioral assessment and the parents are directed to cooperate in any aspect of the FBA requiring their involvement.

OAL DKT. NO. EDS 06076-21 8 This decision on application for emergency relief resolves all of the issues raised in the emergent relief application therefore, no further proceedings in this matter are necessary. This order on application for emergency relief is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and is app ealable by filing a complaint and brin ging a civil action either in the Law Division of the S uperior Court of New J ersey or in a district court of the United S tates. 20 U.S.C. § 1415(i)(2). If the parent 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 Director, Office of Special Educat ion Policy and Dispute Resolution. November 17, 2021 DATE MARY ANN BOGAN, ALJ Date Received at Agency: Date Mailed to Parties: MAB/nmn

OAL DKT. NO. EDS 06076-21 9 APPENDIX EXHIBITS For petitioner: Exhibit A Emails dated October 27, 2021 Exhibit B Email from David B. Rubin, Esq. to Mr. and Mrs. P. Exhibit C Email from Mrs. P. to David B. Rubin, Esq. dated October 27, 2021