LR obo CC v Keyport Borough BOE | Case 02635-22 | 2022-04-11

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 02635-22 AGENCY DKT. NO. 2022-34111 L.R. on behalf of C.C1., Petitioner, v. KEYPORT BORO BOARD OF EDUCATION, Respondent. __________________________________________ L.R., on behalf of C.C. petitioner, pro se, Cherie L. Adams, Esq., for respondent (Adams, Gutierrez & Lattiboudere, LLC, attorneys) Record Closed: April 8, 2022 Decided: April 11, 20222 BEFORE SUSAN L. OLGIATI, ALJ: STATEMENT OF THE CASE Petitioner, L.R., on beha lf of her minor child , C.C. seeks an immediate out-of- 1 Initials are used to protect the identity of the student and his parent. 2 On April 8, 2022, I issued a n oral decision denying the request for emergent relief. This written decision memorializes that oral decision and the reasons therefore.

OAL DKT. NO. EDS 02635-22 2 district placement, and/or remote instruction, or home instruction , pending resolution of the underlyin g due p rocess petition, due to saf ety concern s, relating to C.C. ’s food allergies and his prior participation in a culinary a rts class. Respondent, Keyport Boro Board of Education ( the District), opposes the e mergent relief request ed contending there is no basis for the relief sought and that C.C. is no longer enrolled in the culinary arts class. PROCEDURAL HISTORY On or about April 4, 20 22, L.R. submitted a request for emergent r elief to the New Jersey Department of Education, Office of Special Educatio n. The matter was transmitted to the Office of Administrative Law (OAL) where it was filed on April 6, 2022, for hearing as an emergent contested matter. N.J.S.A. 52:14B-1 to 14B -15; N.J.S.A. 52:14F-1 to 14F-13. The emergent matter was scheduled for or al argument on April 8, 2022. The proceeding was conducted via zoom (remote video hearing), due to ongoing restrictions on in-person proceedings at the OAL because of concerns relating to the COVID pandemic. Petitioner’s request for emergent relief was sub mitted and consid ered for this proceeding. A letter brief on behalf of the District , dated Apri l 7, 202 2, and the supporting certification of J. Erik Mammano, Director of Special Services for the District, dated April 7, 2022, was also submitted and considered. FACTUAL DISCUSSION AND FINDINGS Based upon the submissions of the parti es, and the arguments presented on April 8, 2022, I FIND the following as FACT: 1. C.C. is currently fou rteen years ol d and is in th e ninth grade at Keyport High School (Keyport).

OAL DKT. NO. EDS 02635-22 3 2. C.C.’s has been enrolled at Keyport since approximately September 2, 2021. 3. C.C. has been deemed eligible for Special Education and Related Services. The Individual Education Program ( IEP) outlining C.C.’s education program and services was effective September 2, 2022. 4. C.C. has a n Allergy Emergency Care P lan and a n Asthma Emergency Plan in place at Keyport. 5. In or about January 202 2, C.C. enrolled in a c ulinary arts class with the consent of L.R. 6. On March 15, 2022, L.R. emailed C.C.’s case manager at the District, requesting that C.C. be immediately tr ansferred from the culinary arts class. C.C. was removed from the class on that same da te and was placed in an alternative class. 7. Thereafter, L.R. expressed to the District concern about C.C .’s safety and requested that the District grant C.C. a tran sfer to another school and remote learning access or home instruction until the matter is resolved. 8. C.C. has not attended school since March 29, 2022. ARGUMENTS OF THE PARTIES3 L.R. argues that the District has failed to protect C.C. from life threatening foods to which he is allergic, she fears for his safety, and is conce rned about “what may happen next.” She generally contends that in March 2022, during a culinary arts class, C.C. was exposed to food (raw eggs) to which he is allergic. 4 L.R. expresses concern about the p otential for future harm to C .C. and argues that the district has violated her 3 The following is intended to be a summary of the arguments presented. 4 At oral argument, upon questioning by this ALJ, L.R. declined to provide details regarding the incident(s) occurring in the culinary arts class and stated that she was pleading “the fifth” and invoking her right not to testify regarding same.

OAL DKT. NO. EDS 02635-22 4 trust. As emergent rel ief she seeks to have C.C. transferred to another school . Additionally a nd/or a lternatively, s he requests that C.C . be permitted to participate in remote learning or that the District provide him with home instruction until the is sue of placement is resolved. She contends she should be permitted to pick up schoolwork for C.C. to complete at home and that he should not be penalized for a situation he did not create. The District argues that petitioner is not entitled to the relie f she seeks because there is no threat of irreparable harm to C.C. as he was immediately removed from the culinary a rts class on the date L.R. requested same. The District additionally argues that it has a medical plan in place to address C.C.’s food allergies and to keep him safe. The District contends that its program appropriately meets C.C.’s needs and that there is no basis to remove him. It argues that petitioner ha s refused to pa rticipate in IEP meetings to discuss any concerns that have arisen concerning C.C.’s IEP. The District further contends that it ha s an obligation to provide C .C. with a free appropriate public education (FAPE) in the least restrictive environment (LRE). The District advises that remote learning is no longer an option for students and that no medical documentat ion has been produced to support the re quest for ho me instr uction. Finally, the District argues that a balancing of the equities sho ws that petitioner and C.C. will not suffer the greater harm if the requested relief is not granted. LEGAL ANALYSIS In special education matter s, e mergent relief sha ll only be requested for the following issues: i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, including manifestation determinati ons and determinations of interim alternate educational settings; iii. Issues concerning placement pending the o utcome of due process proceedings; and

OAL DKT. NO. EDS 02635-22 5 iv. Issues involvin g graduation o r part icipation in graduation ceremonies. N.J.A.C. 6A:14-2.7(r)1. In her Certification in Lieu of Affidavit or Notarized Stateme nt of Petitioner Seeking Em ergent Re lief, petitioner in dicated that she believes she is entitled to emergent relief on issues concerning placement pending the o utcome of due pr ocess proceedings (iii).5 As petition er is raising issues concerning C.C.’s current placement and is seeking an out-of-district placement and temporary remote learning or home inst ruction pending resolution of the due process petition, I CONCLUDE it appears that the request for emergent reli ef has been appropriately fil ed with the OAL for consideration herein under N.J.A.C. 6A:14-2.7(r)1(iii). Pursuant to Crowe v. DiGioia, 90 N.J. 126 ( 1982), and New Jersey Administrative Code, N.J.A.C. 1:6A -12.1(e), emergency relief may be grante d i f the judge determines from the proofs that each of the followi ng el ements have been established: i. The petit ioner will suffer irreparable harm i f the requested relief is not granted; ii. The legal right underlying the petitioner’s claim is settled; iii. The petitioner has a likelihood of prevailing o n the merits of the underlying claim; and iv. When the equit ies and interests of the parties are balanced, the petiti oner will suffer greater harm than the respondent will suffer if the requested relief is not granted. 5 It appears that in the Certification petitioner also indicated that the issues involv ed disciplinary action, including manifestation determ inations and determinations of interim alternate educational sett ings. A t oral argument petitioner explained that she did not recall checking that issue and believes that this may have been in error. A review of the Emergent Relief filing submitted by petitioner reveals no claim concerning disciplinary actions and supports petitioner’s contention that this issue was indicated in error.

OAL DKT. NO. EDS 02635-22 6 N.J.A.C. 1:6A-12.1(e). As to the first pro ng of the standard for emergent relief, petitioner acknowledges that C.C. has been removed f rom the culinary arts class and enrolled in another class but expresses concern about the potential for possible future harm to C.C. While petitioner’s concerns about C.C.’s safety may be genuine, they are unspecified, speculative, and unsupported by any me dical or other competent evidence. Additionally, as pet itioner’s conc erns relate to possible fu ture harm, L.R. has not presented any evidence of immediate or irreparable harm to C.C. if the requested relief is not granted. Accordingly, I CONCLUDE that the petitioner h as failed to satisfy the first prong. As to the second and third prongs of the standard for eme rgent relief, petitioner has not demonstrated that her clai m is well settled in her favor or that she ha s a likelihood of prevailing on the merits of the underclaim. Rather, as previously indicated, she contends that the District failed to protect her son and the solution is an out -of- district transfer to a nother school, an d/or participation in remo te learning /home instruction. L.R. has not fully explained how the district failed to protect C.C. or why and/or how it would be unable to protect him from future harm. Moreover, she has not explained why or how a transfer to a n out-of-district placement is needed or presented any medical documentation supporting he r concerns or the requested relief . The District correctly asserts that it is obligated to provide a (FAPE) in the leas t restrictive environment, under to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 (d) (1), 1412 (a)(5) (A) and N.J.A.C. 6A:14-4.2. Accordingly, I CONCLUDE that the petitioner has failed to satisfy the second and third prongs. Finally, as to the fourth prong of th e standard for e mergent reli ef, having considered the equities and the interests of the parties , I CONCLUDE that the balance weighs in fa vor of the District. While I am no t unsympathetic to petitioner ’s concerns about C.C.’s safety, they ar e simply too speculative and too remote, particularly given that C.C. is no longer enrolled or participating in the culinary arts class and there is no medical documentat ion supporting petitioner ’s concerns or request for relief. To the extent that L.R. continues to have concerns abou t C.C.’s IEP , his Allergy Emergency

OAL DKT. NO. EDS 02635-22 7 Care P lan, or any other concerns relating to his health and safety , I encourage petitioner to meet with the Di strict to discuss same and possible changes or modifications to his IEP. Based on the foregoing, I CONCLUDE that the petitioner has failed to meet any of the four required elements of the standard for emergent relief, and as a result, is not entitled to the emergent relief requested. ORDER It is ORDERED that petitioner’s request for emergent relief of an immediate out- of-district placement, and/or temporary placement in remote learning or home instruction during the pendency of the underlying due process petition 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 local resolution session, pursuant to 20 U.S.C.A. § 1415 (f)(1)(B)(i). If the parent or adult student feels that this decision is not being fully implemented with resp ect to program or servic es, this concern should be communicated in writing to the Director, Office of Special Education. April 11, 2022 DATE SUSAN L.OLGIATI, ALJ Date Received at Agency Date Mailed to Parties: SLO/lam