KP obo IM v Saddle Brook Twp BOE | Case 01982-19 | 2019-12-09

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 01982-19 AGENCY DKT. NO. 2019 29243 K.P. ON BEHALF OF I.M., Petitioners, v. SADDLE BROOK TOWNSHIP BOARD OF EDUCATION, Respondent. ________________________________ K.P. on behalf of I.M., petitioner, pro se Jessika Kleen, Esq., for respondent (Machado Law Group) Record Closed: October 25, 2019 Decided: December 9, 2019 BEFORE JUDE-ANTHONY TISCORNIA, ALJ: STATEMENT OF THE CASE K.P. (petitioner) on behalf o f her minor daughter, I.M., seeks an IEP meeting in order to form an Individualized Education Plan (IEP); and out-of-district placement.

OAL DKT. NO. EDS 01982-19 2 ISSUES Has respondent school district failed to set up an IEP meeting and formulate an IEP? Is petitioner entitled to an out-of-district placement? PROCEDURAL HISTORY Petitioner filed a request for due process , which was received by the Office of Special Education Policy and Planning on January 7, 2019. The matter was transmitted to the Offi ce of Administrative Law (OAL) on February 7, 2019 , for determination as a contested case. The case was trans mitted to the undersigned on March 21, 2019. A Motion for summary decision was filed on April 3, 2019. After conferring with the parties via tel ephonic conference on A pril 5, 2019, it was determined that a ruling on the foregoing motion would be suspended pending the outcome of an older due process petition (EDS 01186 -18) i nvolving the identical parties and the same 2018 -2019 IEP. That case was successfully resolved via settlement agreement signed on July 16, 2019. An in-person settlement conference was then conducted regarding the foregoing case on August 22, 2019, at which time the parties failed to reach an amicable resolution. At the conclus ion o f the settlement c onference, the respondent re newed her motion for summary decision. Petitioner was given thirty days to submit a written response to the motion. On September 23, 2 019, a request by petitioner for a thirty-day extension to October 25, 2019, was received and granted by the undersigned. The record was closed on October 25, 2019. FACTS Based upon the documents submitted in support of and in opposition to the motion for summary decision, I FIND the following as FACT: 1. Petitioner fil ed t he f orgoing Due Proces s Petition seeking an immediate IEP meeting on January 7, 2019. 2. The District has attempted to meet with petitioner for an IEP meeting at least four times.

OAL DKT. NO. EDS 01982-19 3 3. On January 8, 2019, attorney for respondent school district sent the petitioner a letter confirming that an IEP meeting was scheduled for February 1, 2019 , at 10:30 a.m. 4. On February 21, 2019, attorney for respondent school district sent the petitioner a letter proposing that an IEP meeting be held on March 4, 2019, at 9:30 a.m. 5. On February 26, 2019, attorney for respondent school district sent the petitioner a letter confirming that an IEP meeting was scheduled for March 4, 2019 , at 10:30 a.m. 6. On March 13, 2019, attorney for respondent school district sent the petitioner a letter confirming that an IEP meeting was scheduled for March 18, 2019, at 10:00 a.m. 7. On March 15, 2019, attorney for respondent school district sent the petitioner a letter informing her that the district had to move t he IEP meeting from March 18, 2019, to March 19, 2019, at 10:00 a.m. due to the unavailability of the translator. 8. The last attempt to meet occurred on March 19, 2019. Petitioner failed to make herself available at any of the proposed IEP meetings, inclu ding this final proposed meeting. 9. As this w as the fourth and last attempt to meet with petitioner, the IEP team conducted the meeting on March 19, 2019, in her absence, and proposed an IEP for the student. 10. The proposed IEP was mailed to petitioner. 11. Petitioner does not propose an out -of-district placement in her due process petition. Rather, p etitioner’s prayer for relief as set forth in her due process petition simply states “out of school district ,” which has been interpreted by respondent to mean petitioner seeks an out-of-district placement for her child. Summary Decision Standard A “motion for summary decision shall be served with briefs and with or without supporting affidavits.” N.J.A.C. 1:1 -12.5(b). A summary decision may be rendered “if the papers and discovery which ha ve b een fi led, together with th e affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law.” Ibid. A court should gr ant

OAL DKT. NO. EDS 01982-19 4 summary judgment when the pleadin gs, depositions, answers to int errogatories and admissions on file, together with the affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of l aw. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). Here, Petitioner demands the district IEP team convene in order to craft a new IEP for her minor daughter. Respondent had arranged for an IEP meeting to be conducted on at le ast four separate occasions, notifying peti tioner of each. Petitioner has failed to make herself available to attend the meetings, and an IEP meeting was ultimately conducted without petitioner being present. I therefore FIND that respondent has made reasonable attempts to accommodate petitioner’s demand for an IEP meeting and I further FIND that petitioner has failed to appear at any such meeting. Given that the meeting was ultimately conducted in petitioner’s absence, I CONCLUDE that the forgoing petition demanding an IEP meeting is mute. Further, I FIND that petitioner has failed to provide any supporting documents or any reason why an out -of-district placement is warranted. I therefore CONCLUDE that an out-of-district placement is not warranted in this matter and I further CONCLUDE, as a matter of law, that the forgoing motion should be granted as no material issue of fact remains. ORDER Based upon the foregoing, it is ORDERED that respondent Saddle Brook Board of Education’s motion for summary de cision is GRANTED as there are no issues of material fact in dispute and the moving party is entitled to prevail as a matter of law. It is further ORDERED that the Clerk return this file to the Office of Special Education Programs of the New Jersey Department of Education.

OAL DKT. NO. EDS 01982-19 5 This decisi on i s final pur suant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2019) 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. § 1 415(i)(2); 34 C.F.R. § 300.516 (2019). If the parent or adult s tudent feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in w riting to the Directo r, Office of Special Education Programs. December 9, 2019 DATE JUDE-ANTHONY TISCORNIA, ALJ Date Received at Agency 12/9/19 Date Mailed to Parties: id