MP and RP obo SP v Bernards Twp BOE | Case 01037-22 | 2022-03-22

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 01037-22 AGENCY DKT. NO. 2022-33845 M.P. and R.P. on behalf of S.P., Petitioners, v. BERNARDS TOWNSHIP BOARD OF EDUCATION, Respondent. ________________________ M.P. and R.P. on behalf of S.P., petitioners, pro se Cherie L. Adams, Esq., for respondent (Adams, Gutierrez & Lattiboudere, LLC, attorneys) Record Closed: March 21, 2022 Decided: March 22, 2022 BEFORE SARAH G. CROWLEY, 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 S.P. is unable to be educated in school at this time as he is unab le to communicate wearing a

OAL DKT. NO. EDS 01037-22 2 mask due to stimulatory and sensory behaviors. They are seeking home instruction for S.P. On March 8, 2022, respondent filed a Motion to Dismiss asserting that t he complaint is insufficient because it fa ils to raise a dispute regarding S. P.’s special education program and does not articulate facts relevant to the progra m. 20 U.S.C. § 1415(c)(2)(A); 34 C.F.R. § 300.508(d)); N.J.A.C. 6A:14-2.7(a). The Office o f Special Education Programs transmitted this case to the Office of Administrative Law, where it was filed on February 10, 2022. A Zoom conference call was held on March 15, 2022, to discuss the issues with the parties. The undersigned discussed the sole issue raised in the petition of the mask mandate with the petitioners, in light of the elim ination of same in the District. The petitioner s advised that due to medical issues involving S.P.’s father, t hey are s till seeking home ins truction. The petitioners were advised that this is not the issue raised in the petition and that there has been no medical or other documentation provided to the District or the undersigned to support this argument. Moreover, an issue relating to the condition of S.P.’s father does not relate to S.P’s IEP or program and th us is not appropriately raised in a due process proceeding. The petitioners were advised to submit a response to the motion on or before March 21, 2022 . A response was filed on March 21, 2022, and the record closed on that date. 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 free appropriate public education or disciplinary action.” The District argues that the petition sh ould be dismissed because the issue relating to S.P.’s father’s health is not related to any of the foregoing issues. Curiously, they now raise other issues not related to the issue of the mask or the father and seek to amend the petition . There is no support for any o f the arguments being raised in the pa pers filed to day. The sole issue in the petition related to S.P.’s placement in the school setting with a mask is moot. It is also important to note that the petitioners never sought an exemption from the ma sk mandate. However, there is no

OAL DKT. NO. EDS 01037-22 3 longer any mask mandate and no other claims arising under 6A;14-2.7(a) have been asserted. The argument which petitioners raised for the first time on the Zoom conf erence on March 15, 2022, related to S.P.’s father. The argument in their papers filed on March 21, 2022, seeks to amend the due process based on a comple tely new issue related to S.P.’s increased risk of COVID. There is no support provided for this claim. Moreover, such issues are related exclusively to non-special education matters, and as such, any such peti tion asserting this claim would fail to satisfy the criteria of N.J.A.C. 6A:14-2.7(a). A cont roversy or dispute arising under the school laws which does no t meet the threshold requirements of N. J.A.C. 6A:14-2.7(a) cannot be asserted in a due process petition, as such disputes fall within the exclusive jurisdiction of the Commissioner of Education. See N.J.A.C. 6A:3.-1.3(a); N.J.A.C. 6A:3-1.14(a). I CONCLUDE that the relief sought in the petitioner s’ complaint is moot as the District has suspended the mask mandate in the schools. I further CONCLUDE that any claim rela ted to S.P .’s father and/or S.P.’s health issues are not supported by any documentation and are not properly asserted in this due process proceeding and thus, the request to amend the petition to asset such claims is DENIED. I therefore ORDER that the due process complaint be DISMISSED.

OAL DKT. NO. EDS 01037-22 4 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 service s, this concern should be com municated in writing to the Directo r, Office of Special Education. March 22, 2022 DATE SARAH G. CROWLEY, ALJ Date Received at Agency: Date Mailed to Parties: SCG/sm