MP and RP obo CC v Keyport Borough BOE | Case 01083-22 | 2022-04-12

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 01083-22 AGENCY DKT. NO. 2022-33844 M.P. and R.P. on behalf of G.P., Petitioners, v. BERNARDS TOWNSHIP BOARD OF EDUCATION, Respondent. ________________________ M.P. and R.P. on behalf of G.P., petitioners, pro se Cherie L. Adams, Esq., for respo ndent (Adams, Gutierrez & Lattiboudere, LLC, attorneys) Record Closed: April 7, 2022 Decided: April 12, 2022 BEFORE CARL V. BUCK III, ALJ: STATEMENT OF CASE AND PROCEDURAL HISTORY On January 13, 2022, petitioner s filed a due process complaint with the Department of Education, Office of Special Education Programs, allegin g that G.P. is

OAL DKT. NO. EDS 01038-22 2 suffering from anxiety and sleeping issu es related to the pandemic. Parents are seeking home instruction for G.P. The Office o f Special Education Programs transmitted this case to the Office of Administrative Law, where it was filed on February 10, 2022. Initially the matter was assigned, with two companion cases, to the Hon. Sarah Crowley, ALJ . S ubsequently, one of the companion cases was assigned to the undersigned. A telephone conference call was held on March 3, 2022, to discuss the issue on appeal with the parties. The undersigned discussed the request of home instruction and c ompensatory education raised in the petition . Petitioners advised that G.P. was showing signs of an xiety and sleeping issues related to the pandemic. Parents were requesting “to meet with the district and revis e G. ’s IEP and I&RS Action Plan, so that h e can receive Home Instruction with his supports and related services as per his IEP, and I&RS Action Plan.” Respondent’s position is that petitioners do not challenge the plan(s), they are seeking that the services be delivered “at home ” and they advised of their intention to file a Motion to Dismiss in the action. On March 10, 2022, respondent filed a Motion to Dismiss and associated documents asserting that t he complaint is insufficient and does not conform t o th e substantive requirements contained in N.J.A.C. 6A:14 as there is not a cognizable claim under the IDEA or related State of New Jersey laws. 20 U.S.C. § 1415(c)(2)(A); 34 C.F.R. § 300.508(d)); N.J.A.C. 6A:14-2.7(a). During a Zoom conference hel d on March 14, 202 2, petitioners were advised that if they wished to submit a response to the motion such response must be sub mitted on or before March 30, 2022. Documents, specifically medical report s, were filed by that date. A Zoom teleconference was held on April 5, 2022 , to ascertain if the parties had any addition al information to provide regarding their respective cases and were advised to file a ny additional information by 5.00 p.m. on April 6, 2022 . Additional information was submitted by petioner, and the record closed on April 7, 2022.

OAL DKT. NO. EDS 01038-22 3 FINDINGS For testimony to be believed, it must not only come from the mouth of a credible witness, but it also has to be credible in itself. It must elicit evidence that is from such common experience and observati on that it can be approved as proper under the circumstances. See Spagnuolo v. Bonnet , 16 N.J. 546 (1954); Gallo v. Gallo , 66 N.J. Super. 1 (App. Div. 1961). A credibility determination requires an overall assessment of the witness’s story in light of it s rationality, internal consistency, and the manner in which it “hangs together” with the other evidence. Carbo v. United States , 314 F.2d 718, 749 (9th Cir. 1 963). Also, “‘[t]he interest, motive, bias, o r prejudice of a witness may affect his credibilit y and justify the [trier of fact], whose province it is to pass upon the credibility of an interested witness, in disbelieving his testimony.’” State v. Salimone, 19 N.J. Super. 600, 608 (App. Div.), certif. de nied, 10 N.J. 316 (1952) (citation omitted). In determining credibility, I do not believe that District employees would want to deprive G.P. of a program to augment his educational opportunities but t hey must also work within the parameters of the law and regulations. I am also aware that the parents would want the best educational opportunity for their child. In this case, therefore, I do not find that there is an issue of credibility as much as an issue of experience and knowledge. Therefore, I a ccept the information set out by the District spec ifically within the Certification of Jean O ’Connell. the testimony of the District’s witnesses as credible as to the extent of implementing the proposed IEP. In particular, O’Connell’s statement t hat the district has been attempting to schedule an IEP me eting with the parents since the parents ’ request of January 2, 2022 without success. Additionally, the fact that G.P. has not attended school for the entire academic hear has resulted in a “gap” in provision o f the services G.P. is entitled to. But the services are provided in school. O’Connell’s certification states “The school ph ysician reached out for and ultimately spoke with the children’s pediatrician after receiving the new medical notes. Based upon this information, the school physician denie d approval for me dical home

OAL DKT. NO. EDS 01038-22 4 instruction. G.P. has not returned to the school. ” The information provided by petitioners as to G.P. ’s anxiety does not surmount this position by the District ’s doctor. There is also an overlay of a medical condition of G.P. ’s father that w as alluded to in a number of the documents, but specifics of that condition were not provided. This information as provided by the District are the overriding factors here and as such I find them as FACT. LEGAL ARGUMENT AND CONCLUSION Pursuant to N.J.A. C. 6A:14-2.7(a), “a due process may be requested when there is a disagreement regarding identific ation, evaluation, re-evaluation, classification, educational placement, and the provi sion of a f ree appropriat e public education or disciplinary action.” The District argues that the petition sh ould be dismissed because the issue is a request from peti oner to provide G.P.’s services “at home” together with general education serv ices to be provided “at home” and no t dissatisfaction of the services or request for additional services. Petitioner provided the following in support of their application: 1. An extremel y short (4 lines) note from Janine DeFeo, APN of Children ’s Specialized Hospital dated March 2, 2022 stating “Primary concerns Anxiety General” 2. A memorandum dated March 28, 2022 stating: a. We are not seeking a Virtual or Remote schooling option. We are seeking to amend G.’s I&RS Action Plan and Speech IEP, to Home Instru ction since the Distri ct Physician will not approve Home Instruction. b. According to NJ Law, G . is entitle d to a Free Appropriate Public Education. Therefore, his I&RS Action Plan and Speech IEP, need to be revised

OAL DKT. NO. EDS 01038-22 5 with accommodations, modifications, and su pports due to his anxiety diagnosis. c. We requested from the distric t numerous times specific reasons from Dr. Speesler for his denial and have yet to receive any documentation. d. We submitted on March 25, 2022 to the District a recent letter requesting Home Instruction after G.’s recent appoin tment at Children’s Specializ ed Hospital. We have not received a response from the district or any attempts from Dr. S peesler to further discuss. e. The district lacks transparency and is not acting in good fait h of G.’s education. We were not aware that we could appeal a medical determination, until just recently. f. We had postponed G .’s IEP meeting, since the district would not work with us during the IEP meetings for our other two children. We also had an appointment scheduled for March 11, 2022 with Children’s Specialized Hospital i n regards to addressing the anxiety and sleep issues further. We felt it was best to meet after we received the report and plan of action. g. There is documentation from all of Mr. P .’s doctors (Pulmonologist, Allergist, ENT) of his diagnoses. h. The district is aware of C. P.’s severe allergies, as they have been provided documentation from his Allergist. i. Dr. Speesler , the District Physician made no attempt to speak with G . P. in regard to attending in-person school, or to his p arents to gather more information before denying Home Instruction. j. G.P. has stated several times to his parents and physicians, he does not feel comfortable going to school in-person due to the Pandemic. 3. A “Developmental and Behavioral Pediatrics Initial Evaluation” dated March 11, 2022 signed by DeFeo stating, among other things, that: a. Parents have a concern that G.P. appears to be deaf.

OAL DKT. NO. EDS 01038-22 6 b. Impression G. is a 11 year-old male who was seen today for an Initial Neurodevelopmental Evaluation. G.’s reported history and exam findings are consistent with the diagnosis of: Problem List: (1) Articulation disorder (2) Academic problem (3) Behavior concern 4. Under (2) Academic Problem it states, “Assessment & Plan: Recommend home instru ction provided by the school due to healt h concerns related to father and Covid 19.” Respondent provides the following information in their Motion: 1. District’s physician after consultation with the family’s doctor has determined that home instruction is not medically necessary. 2. Although the reas ons provided for the reque st continue to be medical in nature, the due process petition is allegedly seeking a revision of the speech IEP placing G.P. on home or virtual instruction with his educational program, supports and relat ed ser vices provided as pe r his existing Speech Individualized Education Program (“IEP”) and general education I&RS Plan. 3. The allegations do not challenge the services provided to G.P. under the IEP or I&RS Plan. 4. An IEP meeting was not he ld because parents refused to schedule a meeting in February of 2022, despite the district’s efforts to schedule one. 5. Petitioners do not allege that the district’s IEP violated the Individuals with Disabilities Act (“IDEA”) and state regulations, nor do t hey allege that the I&RS Plan is inappropriate. 6. Although G.P. is el igible for speech services under the classification of Speech Language Impairment, the allegations do not pertain to an issue that would be covered under the purview of the IDEA.

OAL DKT. NO. EDS 01038-22 7 7. Pursuant to the petitioners r equest to hold a meet ing, the district initiall y scheduled an IEP meeting for January 31, 2022. a. On J anuary 29, 2022, the parents advised the district that the IEP meeting would need to be rescheduled. b. The district reached out a seco nd time on February 8, 2022, to inquire about the parents’ availability for an IEP meeting. c. Parents responded on Febru ary 16, 2022, advising that the proposed dates would not work for them, and they wanted to put the meeting on hold due to the outcomes of previous meetings rel ating to G.P.’s siblings. d. Petitioners’ Due Pro cess Petition does not fall within the confines of N.J.A.C. 6A:14 - 2.7(a) which sets forth the limited circumstances whereby a due process hearing may be requested in a specia l education setting. e. Districts in the State of New Jer sey were not permitted to offer virtual instruction as an option for the 2021-2022 school year, absent medical justification, as reflected in Governor Murphy’s Executive Order #175. There has been no challenge to G.P.’s IEP or I&RS plan. Their request seeks to change provision of these services to home provided – along with home educational instruction. I CONCLUDE that the relief sought in the petitioners’ complaint does not fall within the confines of N.J.A.C . 6A:14-2.7(a) which s ets forth the circumstances where a due process hearing may be requested in a special education matter. Petitioners appeal if for home instruction as well as providing his IEP and I&RS benefits in a home setting which has not been approved by the school physician. Sufficient medical information to counter the District’s position has not been provided. I further CONCLUDE that the claim set out in

OAL DKT. NO. EDS 01038-22 8 this petitioner does not fall under the IDEA and thus authorization to bring such claim is DENIED. I therefore ORDER that the due process complaint be DISMISSED. This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2021) 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. § 1415(i)(2); 34 C.F.R. § 300.516 (2021). If the parent or adult s tudent feels that this decision is not being fully implemented with respect to program or services, this concer n should be communicated in writing to the Dire ctor, Office of Special Education. April 12, 2022 DATE CARL V. BUCK III, ALJ Date Received at Agency: April 12, 2022 Date Mailed to Parties: April 12, 2022 CVB/lam