MR obo MM v Union Township BOE | Case 07206-22 | 2022-10-18

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 07206-22 AGY REF NO. 2023/34862 M.R. ON BEHALF OF M.M., Petitioner, v. UNION TOWNSHIP BOARD OF EDUCATION, Respondent. ______________________________________ Julie Warshaw, Esq., for Petitioner (Warshaw Law Firm, LLC, attorneys) Caitlin Ple tcher, Esq., for R espondent (Florio, P errucci, Steinhardt , Cappelli, Tipton and Taylor, LLC, attorneys) Record Closed: October 5, 2022 Decided: October 18, 2022 BEFORE THOMAS R. BETANCOURT, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner filed a due process petition and motion for e mergent relief with the Office of Special Education (OSE ) in the New Jer sey Department of Education (DOE).

OAL DKT. NO. EDS 07206-22 - 2 - The contested matter was transferred to the Office of Administrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on August 19, 2022. The motion for emergent relief seeks an order for immediate placem ent at Gateway School, along with transition services, behavioral supports from a BCBA, speech-language supports, Occupational therapy, P hysical Therapy, counseling, art and music therapy , and social skills , development of an IEP that reflects the program, placement and all services, along with compensatory education. The matter was originally scheduled for oral argument on Petitioner ’s motion for emergent relief on August 24, 2022. The parties requested that oral argument be converted to a settlement conference, which was held said date in lieu of oral argument. The parties pursued settlement thereafter but were unable to reach resolution of the matter. Petitioner then requested the matter be relisted for oral argument, which was held on October 5, 2022. FACTUAL BACKGROUND It is not disputed that M.M. has not been in a school setting for almost five years, Petitioner seeks an immediate placement at Gateway School. There is disagreement among the parties as to what is the appropriate placement for M .M., and whether or not he is capable of being evaluated in order to develop an IEP. LEGAL ANALYSIS AND CONCLUSION Initially, it must be determined if petitioner is entitled to request emergent relief. A party may only request emergent relief for the following reasons, in accordance with N.J.A.C. 6A:14-2.7(r)1: i. Issues involving a break in the delivery of services;

OAL DKT. NO. EDS 07206-22 - 3 - ii. Issues involving disciplinary action, including manifestation determinations and determinations of interim alternate education settings; iii. Issues concerning placement pending outcome of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. As the present matter concerns placement pending the outcome of a due process proceeding, Petitioner is certainly entitled to seek emergent relief. The New Jersey Supreme Court has set forth a four -prong test for determining whether an applicant is entitled to emergent relief. Crowe v. DeGioia, 90 N.J. 126, 132- 34 (1982) (enumerating the factors later codified at N.J.A.C. 6A:14.2-7(s)1.) The four factors (“the Factors”), include: 1. The petitioner will suffer irreparabl e harm if the requested relief is not granted; 2. The legal right underlying petitioner's claim is settled; 3. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and 4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted. The moving party bears the burden of proving each of the C rowe elements “clearly and convincingly.” Waste Mgmt. of N.J. v. Union Co unty Util. Auth., 399 N.J. Super. 508, 520 (App. Div. 2008). A review of the four factors i s normally in order . However, the u ndersigned has determined that it is not possible to determine that Petitioner will meet Factor Three. Factor Three. Petitioner has a likelihood of prevailing on t he merits of the underlying claim. As M.M. has not been in a school setting for almost five years, and

OAL DKT. NO. EDS 07206-22 - 4 - has not been properly evaluated, and may not be capable of being evaluated, it is simply not possible to determine that Petitioner is likely to succeed on the merits regarding the placement of M.M. at Gateway School. As Crowe v. DeGioia , supra, requires that Petitioner meet all four prongs , I CONCLUDE that Petitioner’s request for emergent relief be DENIED. ORDER It is hereby ORDERED that petitioner’s request for emergent relief be DENIED. This decision on application for emergency relief shall remain i n 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 respect to program or services, this concern should be communicated in writing to the Directo r, Office of Special Education. October 18, 2022 DATE THOMAS R. BETANCOURT, ALJ Date Received at Agency ________________________________ Date Mailed to Parties: ___ db

OAL DKT. NO. EDS 07206-22 - 5 - APPENDIX List of Moving Papers For Petitioner: Brief in support of emergent relief Affidavit of Petitioner Report, 7/21/22, Children’s Specialized Hospital For Respondent: Letter brief in opposition Certification of Kim Conti, Director of Special Services with Exhibit A Certification of Caitlin Pletcher, Esq., with Exhibits B and C