MP and RP obo CP v Benards Twp BOE | Case 01039-22 | 2022-05-23

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 01039-22 AGENCY DKT. NO. 2022-33843 M.P. and R.P. on behalf of C.P., Petitioners, v. BERNARDS TOWNSHIP BOARD OF EDUCATION, Respondent. ________________________ M.P. and R.P. on behalf of C.P., petitioners, pro se Cherie L. Adams, Esq., for respo ndent (Adams, Gutierrez & Lattiboudere, LLC, attorneys) Record Closed: April 7, 2022 Decided: May 23, 2022 BEFORE JUDITH LIEBERMAN, ALJ: STATEMENT OF CASE AND PROCEDURAL HISTORY On January 13, 2022, petitioner s filed a due process complaint , pursuant to the Individuals with Disabilities Act (IDEA), 20 U.S.C. §§ 1400 to 1482, N.J.A.C. 6A:14-2.7, with the Department of Education (DOE), Office of Special Education (OSE). They seek

OAL DKT. NO. EDS 01039-22 2 home instr uction for their son, C.P.1 They a lso seek compensatory services due to respondent’s failure to meet with them to discuss their request. OSE transmitted the petition to the Office of Administrative Law, where it was filed on February 10, 2022, as a contested case. N.J.S.A. 52:14B-1 to B-15; N.J.S.A. 52:14F-1 to F-13. A telephone prehearing conference was held on March 3, 2022, during which petitioners advised that they do not con test C.P.’s individualized education plan ( IEP). Rather, they want the IEP to be implemented at home due to C.P.’s health and difficulty wearing a mask.2 Respondent Bernards Township Board of Education (respondent or Board) advised during the conference that it intended to file a motion to dismiss the due process petition. A brief filing schedule was established and the hearing was scheduled for July 18, 2022. On March 14, 2022, respondent filed a motion to dismiss, with a certification and documents, in which it argued that petitioners have not stated 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). Petitioners filed a respon se on April 7, 2022, and the record for the motion closed that day. FACTUAL DISCUSSION AND FINDINGS The following, taken from the parties’ pleadings and brie fs, is undisputed and I thus FIND the following as FACT: M. P. and R. P. are the parents of C.P., who is seven years old and in the second grade in t he Bernards Township School District. (March 10, 2022, Certification of Director of Special Services Jean O’Connell (“O’Connell cert.”) at ¶ 4-5.) C.P. is eligible for special education and related services under the classification of autism. Id. at ¶6. 1 Petitioners filed separate petitions on behalf of their two other children. These petitions are not addressed here. 2 To help prevent contracting the COVID-19 virus.

OAL DKT. NO. EDS 01039-22 3 Petitioners’ due process petition was filed pur suant the IDEA, 20 U.S.C. §§ 1400 to 14823 They asserted in their due pro cess petition that C.P. is diagnosed with autism and expressive speech de lay. He “is not able to be educated in school at this time, as he is not able to wear a mask due to his severe allergies. He is not able to breathe wearing a mask. [His] severe allergies put him at a compromise d risk if he should contract Covid. [He] also has surgery coming up in March.” Petition at 4. For these reasons, C.P. “has been working at home on the District curricul um from the [school district] website, as well as hi s IEP goals since September 2021. ” Ibid. Petitioners s eek a meeting with the school district to discuss upd ating C.P.’s IEP to permit “home instruction with his educational program, supports, and th e related services as per his IEP. ” Ibid. Petitioners also seek “compensatory services, since the District has declined to meet with [them] since November 1, 2021, to work together to resolve the situation.” Ibid. Respondent asserts that C.P. has been ab sent from school since September 2021, when petitioners asked if he could attend school virtually. O’Connell cert. at ¶31, 11. The District advised that students could not attend school virtually during the 2021 - 2022 school year without a documented medica l authorization for home instruction. Id. at ¶11. In r esponse, petitioners requeste d medical home instruction or virtual instruction for C.P. due to their concerns about the Covid -19 virus and the vulnerability of C.P.’s father, R. P. Ibid. The Distric t requested documentation of R. P.’s medical condition and C.P.’s medical needs . Id. at ¶12. Petitioners provided notes dated October 1, 2021, and October 5 , 2021, in which doctors re commended remote instruction due to R. P. ’s medical condition. Id. at ¶13. The District’s school physician, Dr. Matthew J. Speesler, spoke with petitioners’ pediatrician and concluded there was no basis to permit home or virtual instruction for C.P. He explained his decision in an October 13, 2021, letter. He noted that he unsuccessfully attempted to speak with R. P. ’s pulmonologist on multiple occasions. Id. at ¶15, Exh. 1. 3 As noted, the petition was filed with OSE, with a DOE form that explained the filing requirements found in the IDEA. Petition at 1.

OAL DKT. NO. EDS 01039-22 4 Petitioners were advised that their son was required to return to school, unless he were disenrolled. Id. at ¶14. On October 17, 2021, O’Connell advised petitioners by email that C. P. must return to school or face truancy charges. In an October 28, 2021, O’Connell advised petitioners: As we have discussed, the State of New Jersey mandated that schools reopen for all students this 2021 -2022 school year. As such all students are re quired to physically attend school. The only exception is where a student has an underlying individual health cond ition that puts him/her at an undue risk of exposure to Covid -19, or of exacerbated symptoms of exposed Covid, and which prevents him/her from attending school in person. The decision on whether there is a valid medical justification for the student to remai n out of school is made by the school physician after reviewing the medical justification supplied by the family . As you are also aware, our school physician has reviewed the documentation you supplied and has found no medical justification to approve hom e instruction for your children as they do not have medical conditions meeting the above criteria. We have previ ously advised you of this decision and have repeatedly requested that the children return to school immediately to prevent the need for furth er action. The District has specific obligations under the compulsory education laws that require it to initiate truancy charges[.] . . . Consequently, if your children do not return to school immediately and by no later than Monday, November 1, 2021, we will have n o alternative but to initiate truancy charges and follow the required reporting procedures. [Id. at ¶17, Exh. 2.] Despite this, C.P. did not return to school. Id. at ¶16. The District subsequently initiated truancy proceedings. Id. at ¶19. Petitioners requested an IEP meeting, which was conducted on January 27, 2022. They requested that C. P. receive virtual instruction or home instruction that would implement the existing program and services in his IEP. Id. at ¶ 27. The District

OAL DKT. NO. EDS 01039-22 5 determined that the IEP would not be amended and the case manager would “not make a determination relative to home instruction.” Id. at ¶28. On Ja nuary 28, 2022, C.P.’s pediatrician wrote, that C. P. has “been unable to effectively wear his mask due to sensory and developmental issues, and has repeatedly complained that he can’t breathe with the mask. Because he has not been consistently wearing his mask he is at increased ri sk for Covid -19 infection. Due to this and the communication barriers presented by t he ma sking requirements in school, we would recommend that he receive home instruction.” Id., Exh. 3. The school physician spoke again with the pediatrician and received new medical notes . Id. at ¶ 23. The district denied the request for medical home instruction. On February 24, 2022, Dr. Speesler wrote that, during his conversation with the pediatrician, he was advised that there had been no change in C.P. or R.P.’s medical condition since the date of his first letter, J anuary 28, 2022. Dr. Speesler wrote that he was “denying home instruction since the criteria for home instruction has not been met, as outlined by the State of New Jersey Department of Education statutes. ” Id., Exh. 4. Petitioners have not appealed this determination. Id. at ¶29. LEGAL ARGUMENT AND CONCLUSION Parties Arguments Respondent moved to dismiss the petition because it does not state a cognizable claim u nder the IDEA or related state laws. N. J.A.C. 6A:14-2.7(a) provides, “a due process hearing may be requested when there is a disagreement regarding identification, evaluation, reevaluation, classification , educational placement, the provision of a free, ap propriate public education, or disciplinary action. ” Because the due process petition here does not challenge C.P.’s program, services, or placement, or even assert that the District violated the IDEA, it does not meet the standard for a due process petiti on in this context. Rather, petitioners request a different method f or the implementation of his existing IEP, which they d o not argue is insufficient or lacking in any way.

OAL DKT. NO. EDS 01039-22 6 Respondent also asserts that , pursuant Executive Order 175, issued by Governor Murphy on August 13, 2020, New Jersey school districts are not permitted to offer virtual instruction as an option for the 2 021-2022 school year, absent medical justification. In response, petitioners assert that they seek an amendment to C. P.’s IEP that would allow for home instruction “since t he District physician will not a pprove home instruction.” Pet. Brf. at ¶1. Petitioners believe it is unsafe for him to be in school without a mask. Ibid. They contend that the District has not provided, in response to their requests, the specific basis for Dr. Speesler’s determinatio n, and moreover, that the doctor did not speak with them or C.P. before denying their request. Id. at ¶ 3, 9. They explain that C .P. was required to remain home, in quarantine with his family , in advance of his surgery which was scheduled for March 31, 2022, and for which a post- operative appointment was scheduled for April 20, 2022 . Id. at ¶¶ 6-7. Finally, they assert that t hey were unaware until recently that they could appeal a medical determination. Id. at ¶4. Standard of Review Respondent sough t, a nd was granted, leave to file a motion to dismis s, whi ch requires an analysis of “whether a cause of action is suggested by the facts. ” Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)(citations omitted). Because the matter arises on [respondent ’s] motion to dismiss, [the court must] accept as true the facts alleged in the complaint. . . . [Peti tioners] are entitled to every reasonable inference in the ir fa vor. A reviewing cou rt must “search the complaint in depth and with liberality to ascertain whether the fundament al cause of action may be gleaned even from an obscure statement of claim. . . .” [Craig v. Suburban Cablevision, Inc. , 140 N.J. 623 , 625 -26 (1995)(citations omitted).]

OAL DKT. NO. EDS 01039-22 7 A motion to dismiss should onl y be granted in the rarest of instances. Printing Mart-Morristown v. Sharp Elecs. Corp. , 116 N.J. 739, 772 (1989). “If a complaint must be dismissed after it has been accorded . . . meticulous and indulgent examina tion . . . then, barring any other impediment such as a statute of limitations, the dismissal should be without prejudice to a [petitioner]'s filing of an amended complaint.” Ibid. Pursuant to N.J. Court Rule 4:6-24, if “matters outside the pleading are presented to and not excluded by the court, the moti on [to d ismiss] shall be treated as one for summary [decision] and disposed of as provided by R. 4:46, and all pa rties shall be given reasonable opportunity to present all material pertinent to such a motion. ” See also Jersey City Educ. Ass'n v. City of Jersey Cit y, 316 N.J. Super. 245, 253-54 (App. Div. 1998). Summary decision may be granted “if the papers and discov ery which have been filed, together with the affidav its, if any, show that there is no genuine issue as to any material fact challenged and that the moving p arty is entitled to prevail as a matter of law.” N.J.A.C. 1:1 -12.5(b). The New Jersey Supreme Cou rt addressed the analysis, which requires: a determ ination whether there exists a “genuine issue” of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non -moving party, are sufficient to permit a rational fact-finder to resolve th e alleged disputed issue in favor of the non -moving party. The “judge’s function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether the re is a genuine issue for trial.” [Brill v. Guardian Lif e Insurance Company of America , 142 N.J. 520, 540 (1995)(quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)).] 4 N.J.A.C. 1:1-1.3 permits the OAL to look to the Court Rules for guidance.

OAL DKT. NO. EDS 01039-22 8 See also R. 4:46-2(c) (“An iss ue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non -moving party, wo uld require submission of the issue to the trier of fact”). Here, respondent presented a certification and exhibits in support of its motion . Consequently, the motion must be treated as a motion for summary decision. IDEA The IDEA is intended to ensure that all children with disabilities hav e available to them a “free appropriate public education [FAPE] that emphasiz es special education and related services designed to meet their unique needs and prepare them for further education, employmen t, and ind ependent living. ” 20 U.S.C. § 1400(d)(1)(A). The Act defines FAPE as special education and related services pr ovided in conformity with the IEP. See 20 U.S.C. § 1401(9). A FAPE and related services must be provided to all students with disabilities from age t hree through twenty-one. N.J.A.C. 6A:14-1.1(d). A FAPE means sp ecial e ducation and related services that: a) have been prov ided at public expense, under public supervision and direction, and without charge; b) meet the standards of the State educational agency; c) include an appropriate presch ool, elementary, or secondary school education in the State involved; and d) are prov ided in conformity with the IEP. 20 U.S.C. § 1401(9); N.J.A.C. 6A:14-1.1 et seq. The local public school district is responsible for delivering the services. N.J.A.C. 6A:14-1.1(d). A parent may file a due proc ess petition to challenge a fai lure to provide FAP E. However, the scope of subjects of such a complaint i s limited by regulation. N.J.A.C. 6A:14-2.7(a) provides, “a due process may be requested when there is a disagreement regarding identification, evaluation, re-evaluation, classification, educational placement, and the provision of a f ree appropriate public education or disciplinary action.” This is distinct from other school law matters, such as truancy. See e.g., N.J.S.A. 18A:38-27. Therefore, while a child m ay be classified as eligible for special education, and thus have an IEP that governs the provision of his education and related services, there

OAL DKT. NO. EDS 01039-22 9 can remain educational questions and issu es that fall outside the scope of the IDEA. In C.R. and N.R. on behalf of E.R. v. South Brunswick Township Board of Education, 2019 N.J. AGEN LEXIS 202 (April 19, 2019), petitioners, parents of a minor child classified as eligible for special education ser vices and who had an IE P, alleged that the child was not provided a FA PE because she was subjected to an illegal search and seizure , was bullied, and the school did not properly respond to the incidents. The ALJ found, “[D]espite claiming a denial of a FAPE, petitioners' original claim for relief did not set out how respond ent failed to meet its b urden to provide a FAPE pursuant to the IEP in place, and did not refer to identification, e valuation, reevaluation, classification or educational placement. ” Id. at *5. The ALJ found that, instead, the parents’ claims related to areas of the law outside of the IDEA. Here, it is und isputed that petitioner s do not contest the propriety of C. P.’s IEP, which incorporated his evaluations, classification, and placeme nt. Their statements during the prehearin g conference and in their petition make it plai n that they do not challenge the IEP. Their opposition to this motion reinforces that they seek implementation of the IEP at their home rather than at school, due to t heir conce rns about C.P.’s health. The school laws, and not the laws governing special education, control. See N.J.S.A. 18A:6-9; N.J.A.C. 6A:3-1.3. I, therefore, CONCLUDE that this is not an issue that falls within the scope of permitted due process petitions. I therefore ORDER that respondent’s motion for summary decision is GRANTED and petitioners ’ due process petition is DISMISSED. Petitioners should pursue their claims in accord with the controlling school laws.

OAL DKT. NO. EDS 01039-22 10 This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C.F.R. § 300.514 (2021) and is a ppealable 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 p arent or adult s tudent fee ls that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Directo r, Office of Special Education. May 23, 2022 DATE JUDITH LIEBERMAN, ALJ Date Received at Agency Date Mailed to Parties: JL/lam/mph

OAL DKT. NO. EDS 01039-22 11 EXHIBITS: OAL Exhibit 1: Letter dated June 9, 2022, to petitioners and respondent’s counsel from Judith Lieberman, ALJ