MR obo MM v Union Twp BOE | Case 09244-19 | 2020-01-03

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION SUMMARY DECISION OAL DKT. NO. EDS 09244-19 AGENCY DKT. NO. 2019 30077 M.R. ON BEHALF OF M.M., Petitioners, v. UNION TOWNSHIP BOARD OF EDUCATION, Respondent. _________________________________ Julie Warshaw, Esq., for petitioner (Warshaw Law Firm, LLC, attorneys) Christine Soto, Esq., for respondent (Florio, Perrucci, Steinhardt and Cappelli, LLC, attorneys) Record Closed: December 13, 2019 Decided: January 3, 2020 BEFORE ELLEN S. BASS, ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY In accordance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415, M.R. has requested a due process hearing on behalf o f her son, M.M., who is classified as eligible for special education and related services. The request for due process was received by the Office of Special Education Programs (OSEP) on

OAL DKT. NO. EDS 09244-19 2 June 10, 2019. The contested case was transmitted to the Office of Administrative Law (OAL), w here it was filed on July 10, 201 9. M.R. disagree s with an Individualized Education Plan (IEP) dated May 14, 2019 . The IEP continued homebound instruction for M.M. but omitted behavioral intervention services contained in the prior IEP. And at the time of filing, M.M. was not receiving the promised instruction, and the parties could not reach agreement on how to facilitate its resumption. The petition also raised claims that were not justiciable in this forum; to include tort claims and a claimed violation of the A nti-Bullying Act. N.J.S.A. 18A:37-14. These extraneous clai ms somewhat obfuscated petitioner’s viable IDEA concerns, b ut a fter conferencing with counsel, I was able to frame the issue before me in a P rehearing Order dated October 7, 2019, as follows: In ligh t of the fact that M.M. is not in school, I advised counsel that the hearing will focus on determining what educational services should be provided to M.M. at this time, and what relief is required to ensure that such services can be pr operly delivered to him. It appears that both parties agree that homebound instruction is appropriate but cannot agree on how to facilitate the exchange of inform ation needed to support development of a homebound IEP. I receiv ed n o objec tion from counsel to the form of the P rehearing Order. During a subsequent telephone confer ence with cou nsel, I was informed that homebound had resumed and that the Board had offered extra hours of instruction as compensatory education. The Uni on To wnship Bo ard of Educa tion ( “the Board ”) asserts that the issues raised by the petition thus have been resolved, rendering the matter moot. The Board moreover asserts that the OAL is without jurisdiction to adjudicate any remaining claims in the petition. The Board filed a Motion for Summary Decision on November 25, 2019, and petitioner opposed the motion via letter brief and certifications on December 2, 2019. The Board replied to the opposition on December 13, 2019, and the record closed.

OAL DKT. NO. EDS 09244-19 3 FINDINGS OF FACT The salient facts are not in dispute, and I FIND: M.M. is a twelve-year-old student who has been diagnosed with Autism, generalized anxiety disorder and agoraphobia. He has been classified as eli gible for special education and related servic es sin ce 2011, under the eligibility category “autistic.” M.M. previously received services in an in -district self-contained classroom; he progressed successfully enough that, in the Fall of 2017, all agreed to a transition to a general education classroom for the fifth grade with two resource pul l-outs per day. But the transition went poorly and by April 2018 , M.M. was placed on home instruction. School person nel and M.M. ’s mother began to explore an out-of-district p lacement. M.M. was accepted at the Gateway School, and the parties agreed to placement there . But M.M.’s anxiety prevented him from leaving the house, and his psychiatrist supplied a note indicating that he should remain at home. A November 2018 IEP thus provided for a program of homebound instruction five times weekly for 120 minutes a session (or ten hours weekly), together with behavioral intervention services once per week for 120 minutes.1 That IEP confirmed that ultimately M.M. would attend Gateway. It was noted that the role of t he behaviorist was to assist with the transition to the agreed upon day program. The program of h ome instruction was not entirely successful. M.M. was unavailable for instruction, both physically and emotionally, a good bit of the time. Nor were the offered behavioral intervent ions successful . The petition contains a glaring incongruity in its assessment of the behavioral services being delivered to M.M. via homebound. It asserts that these services resulted in “little progress,” and then avers in the very next paragraph that the program supervisor had reported “significant progress.” 1 Somewhat inexplicably, the IEP states that the placement category is a “Private Residential School” ; M.R. urges that she agreed to all aspects of the IEP but for residential placement. And t he record nowhere reveals that this was or is the recommendation of the school district. Petitioner urges t hat the November IEP al so provided speech a nd language, and occupational therapies. This is not the case . The IEP only provided for speech therapy, and only as part of an extended s chool year program that was to include an autism class placement.

OAL DKT. NO. EDS 09244-19 4 But overall the submissions of the parties make it clear, and I FIND, that these interventions resulted in minimal, if any, progress . The goal of behavioral support was to encourage M.M. to leave the house and attend school. The fact that M.M. remains unable to do so is evidence enough that he continues to be significantly behaviorally involved. Notwithstanding, homebound instruction continued until May 31, 2019, when an IEP meeting took place. The Child Study Team (CST) proposed an IEP that continued home instruction for ten hours per week but discontinued the behavioral support services provided in the earlier IEP. The most recent note from M.M.’s psychiatrist was to expire on May 2 8, 2019 , a nd school personnel advised that in order t o continue homebound instruction an updated doctor’s note would be required. It is at this juncture that the relationship between the parties unraveled. The district was unable to obtain a doctor’s note, as petitioner contended that M.M.’s anxiety was so severe h e could not leave the house to see a psychiat rist. And his m other rejected the IEP because it discontinued behavioral services in the home. When the case was assigned to me on October 3, 2019, M.M. was receiving no educational program whatsoever. The due process petition appeared to be asking for psychiatric care at home, but co unsel clarified that an in -home psychiatric evaluation was the relief sought. Thereafter, on Oc tober 17, 2019, M.M. w as examined by a school appoi nted psychiatrist, Dr. Ellen Platt , at the doctor ’s office . On or about October 22, 2019, Dr. Platt advised the school district verbally that M.M. was cleared for home instruction. The parties disagree when homebound resumed, but all agree that it is now taking place , alb eit fraught with the same di fficulties that plagued the parties previously. By letter dated November 6, 2019, counsel for the Board advised that M.M. would receive an additional 146 hours of home instruction to compensate him for the sessions missed from June 2019 through October 30, 2019.2 2 The parties disagree about why there was a break in services, with the Board urging that petitioner is at fault for failing to sup ply a doctor’s note. But the Board also urges, and I agree, that it matters not since it has agreed to compensate M.M. for the time lost regardless of who or what is to blame.

OAL DKT. NO. EDS 09244-19 5 Petitioner’s opposition to the motion recounts the ongoing di fficulties being encountered in delivering homebound instruction but does not assert that M.R. desires any other form of instructi on for her son at this time. Per M.M.’s mother, the instructor is only p resent abou t five hours per week. And although M.R. ur ges that the prior homebound instruct or “indicated that M.M. has made little progress b ecause eith er M.M. locks himself in his ro om or the bathroom or h e is asleep and not available for home instruction,” she now is aggrieved that the prior instructor has been re placed because “M.M. [is] at least familiar with [the prior instructor] and would be less scared of her.” As for the offered c ompensatory e ducation, M.R. does not indicate how many hours she believes M.M. is owed. Rather, s he urges that the petition should not be dismissed only because she distrusts the district’s calculation of ho urs, and “[since] there is no way to know if the y will follow through with their a ssertion [that compensatory education would be provided] , petitioner is ent itled to an en forceable Order th rough either a settle ment agreement or a determination by an ALJ.” Having received no information or documentation from the petitioner to the contrary, I FIND that 146 hours of instruction will compensate M.M. for lost homebound services. A review of the petition for due process, and the opposition to the motion, readily reveals that petitioner has a much broader litigation agenda than ensuring that her son receives homebound instruction pending out-of-district placement. The petition asserts at length that upon being placed in the mains tream, M.M. was the victim of bullying that went unaddressed by school personnel. As a result, M.R. alleges that school personnel “directly and proximately caused and continue to ca use trauma, mental stress, anxie ty, Post-Traumatic Stress Dis order, and da mages to petitioner and M.M. ” The petiti on seeks psychiatric and psycho logical care at home for M.M.; a new H arassment Intimidation and Bullying (HIB) investigation; compensatory and punitive damages; and attorney’s fees and costs . Lest the reader of the p etition be left with any doubt that monetary damages were a paramount objective in filing for due process, this demand is repeated no fewer than three times. And counsel explains further in her opposition to the motion that

OAL DKT. NO. EDS 09244-19 6 [d]ue to the s tate of the law o n exhaustion o f remedies, it is imperative that Pe titioner state all o f her claims against the Respondent and i f some of the claims are not heard due to a lack of jurisdiction, then at least Pe titioner can say t hat she tried to exhaust her reme dies…[citations omitted] …Further, since t here i s not [sic] settlement agreement in this matter addressing all of Petitioner’s claims, then Pe titioner has a right to request all forms of relief. If Petitio ner prevails on the merits in her due process action and there i s a determinat ion by this Court that M.M. was denied FAPE , then said f inding can be u sed later in a civil action against said Respondent. Petitioner also filed a Notice of Tort Claim due to the ex treme distress, Agora phobia, and Post Traumatic Stress Disorder that was directly and proximately caused by the district’s failures to address the bullyi ng against M.M. … to assert said c laims for compensatory damages and attorney’s fees, and other relief is appropriate in this matter. I do not dou bt for a moment that M.R. car es about her child’s educational well- being. And I FIND that the petition for d ue process was filed , in part , because the district insisted on medical authorization to s upport further homebound instruction and had terminated behavioral services in the h ome; all le gitimate IDEA con cerns. But, I also FIND that the pe tition w as filed largely as a sc affold for a personal injury claim. Petitioner believes that her son ’s current dire emotional st ate was caused by th e inaction of school district personnel when M.M. experienced difficulties in his mainstream program, and she seeks monetary compensation. LEGAL ANALYSIS AND CONCLUSIONS OF LAW N.J.A.C. 1:1-12.5(b) provides that summary decision sho uld be rendered “if the papers and discovery which have been filed, together with the affid avits, if any, show that there is no gen uine issue as to any material fact challenged and that the movi ng party is entitled to prevail as a matter of law.” Our regulation mirrors R. 4:46-2(c), which provides that “ [t]he judg ment or order sough t shall be r endered forthwith if the pleadings, depositions, answers to i nterrogatories and admissions on file, tog ether with the affidavits, if any, show that there is no genui ne issue as to any material fa ct

OAL DKT. NO. EDS 09244-19 7 challenged and that the mov ing party is entitl ed to a judg ment or order as a matter of law.” A de termination whether a genuine issue of material fact exists tha t precludes summary decision requires the judge to consider wh ether the competent evidential materials presented, when vie wed in the light mo st favorable to the non -moving party, are sufficient to pe rmit a rational fact fin der to resolve the alleged disput ed issu e in favor of the non-moving party. Our courts have lo ng held that “if the opposing party . . . offers . . . only facts which are immaterial or of an insubstantial nature, a mere scinti lla, ‘Fanciful, frivolous, gauzy or merely suspicious,’ he will not be heard to complain if the court grants summary judgment .” Brill v. Guardian Life Ins . Co. of Am. , 142 N.J. 520, 529 (1995) (citing Judson v. Peop les Bank & Trust Co. , 17 N.J. 67, 75 (19 54)). The “judge’s f unction i s not himself [or herself] to wei gh the evidence and determine the truth of the matter but to d etermine whether there is a ge nuine issue for trial.” Brill, 142 N.J. at 540 ( citing Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). When the evidence “is so one-sided that one party must prevail as a matter of law,” the trial court should not hesi tate to grant summary judgment . Liberty Lobby , 477 U.S. at 252. I CONCLUDE that this ma tter is ripe for summary decision . My reasoning is three-fold: most of the claims of the petition are either outside my jurisd iction or moot; as to any remaining claims there are no dispute d material facts; and the goals of the IDEA are best served by dismissal of this action. Homebound has resumed and compensatory educati on has been offered. The Board thus urges that the claims of the petition have been rendered moot , and I largely agree. An action is moot when it no longer presents a justiciable controversy because the issues raised have become a cademic. For reasons of judicial economy and restraint it is appropriate to refrain from decision -making when an issue pres ented is hypothetical, judgment cannot grant effective re lief, or the parti es do not ha ve a concrete adversity of inte rest. Anderson v. Sills , 143 N.J. Sup er. 432, 437 (Ch. Div. 1976); J.L. and K.D. o/b/o J.L. v. Harrison Twp. Bd. of Educ. , ED S 13858-13, Final Decision (January 28, 2014) <http://lawlibrary.rutgers.edu/oal/search.html>. The IDEA claims raised in the petition have been mostly resolved.

OAL DKT. NO. EDS 09244-19 8 I CONCLUDE that there is no further relief that can be aff orded this petitioner relative to placemen t. Indeed, both homeboun d, and ultimate placement at Gateway , have been agreed to by both the parent and school personnel . Moreover, the Board will provide compensatory hours of instruction to make-up for the time missed from M ay to October 2019. The Board thus has agreed to give M.M. precisely what I could have and would have o rdered to compensate him for any denial of a free and appr opriate public education (FAPE) . I CONCLUDE that M.M. should receive compensatory education in the am ount of 146 hour s of instruction . I CONCLUDE that there is no further relief that can be afforded this petitioner relative to compensatory education. Petitioner urges that homebound has not been delivered satisfactorily. She asserts that M.M. is not receiving the ten hours per week to which he is entitled by law. The regulation that guarantees this level of homebound instruction addresses an IEP Team determination that a student must have his or her IEP implemented via one -to- one instruction at ho me, because “all other le ss restrictive program options have been considered an d have been determined inappropriate.” N .J.A.C. 6A:14 -4.8(a). Here, M.M. was not placed on homebound via a n IEP Team determination ; rather, his medical needs prevent him from a ttending school . M.M.’s homebound services are governed by N.J.A.C. 6A: 16-10.1, which provides that [t]he district b oard of education shall provide instructional services to an enrolled student, whether a general education student in kindergarten through grade 12 o r special education student age three to 21, when the student is confined to the home or another out-of-school setting due to a temporary or chronic health co ndition or a need for treatment that precludes participation in their usual education setting, whe ther general education or special education. The regulation makes it cl ear that home instruction under these circumstances requires that, “the parent shall s ubmit to the school district a request that includes a wr itten determination from the student ’s physician docum enting th e projected need for confinement…” N.J.A.C. 6A:16 -10.1(a)(1). I th us CONCLUDE that t he district’s insistence on an up -to-date medica l n ote was appropriate, and consistent with the

OAL DKT. NO. EDS 09244-19 9 regulatory language. For a student with disabilities no number of hours of instruction is specified, with the regulation providing that “home instruction shall be consistent with the student ’s individualized education plan (IEP) to the exten t appropriate...” N.J.A.C. 6A:16-10.1(c)(4). I CONCLUDE that the district is obliged, to th e extent possible, to offer ten ho urs per week of homebound inst ruction, as promised in the IEP . I so CONCLUDE remaining fully cogn izant that this amount of home bound is likely impossible unless M.M. ’s medical cris is is resolved ; and to reiterate, the regulation requires compliance with the IEP only to “the extent appropriate.” Relative to the behavioral interventions offered in the home under the prior IEP, there are no fac tual disputes that warrant proceeding to hearing. Nowhere do the pleadings or other submissions reveal that anyone found these interventions unnecessary. Likewise, all agree that because M.M. is so behaviorally involved, these in-home services were less than successful. I nonetheless CONCLUDE that the district should attempt to resume this support . The parties certainly will not achieve the ir mutual goal of returning M.M. to a school setting if nothing is done to a ssist him. Again, I am fully aw are that M.M. may not make himself a vailable to the therapist, and again appreciate that these services can be offered only to the extent possible. The ineffectiveness of the current homebound program leads me to the real c rux of this matter , and to the most important reason why this petition should be dismissed . The submissions of the parties make it plain that M.M. is experiencing grave psychiatric difficulties; as a result, it is doub tful that continued homebound instruct ion is going to benefit him academically or emotionally in any real way. Yet t here is no real disagreement as to what services the part ies presently wish to see in place ; M.M. thus remains in an educational limbo. And b ecause neither party asks that another educational placement be consid ered, this petition will do nothing to propel his education fo rward. I CONCLUDE that M.M. is best served by dismissing this petition with the direction that the IEP Team promptly reconvene and talk in earnest about how to best educat e M.M . T hat conversation can and must consider both educational

OAL DKT. NO. EDS 09244-19 10 interventions and medical ones; or put an other way, both the parent and school personnel have a role to play in helping M.M. succeed. 3 The statutory scheme makes clear that sch ool districts are not responsible for medical treatment. 20 U. S.C. §1401(26)(A) provides that while “related services” can mean transportation and other supportive services such as m edical servic es, “such medical services shall be for diagnostic and evalu ation purpose s on ly…” See also: Irvington Independent Sch. Dis t. v. T atro, 468 U.S. 883 (1984) , where the Supreme Court analyzed the type of medical care that falls within the ambit of the IDEA . The Court recognized that the services of a medical doctor were not the responsibility of the public schools, and that Con gress i ntended “to spare schools from an obligation to provide a service that might well prove unduly expensive and beyo nd the range of their competence.” Irving Independent Sch. Dist. v. Tatro, 468 U.S. at 892. The petition asks that a psychiatrist come to the home. I CONCLUDE that the d istrict is not responsible for psychiatric care at home. To the extent that the peti tion sought only a psychiatric evaluation, I CONCLUDE that this claim is moot, as M.M. was examined by Dr. P latt at district expense. And to the extent that M.M .’s health is suc h that he requires more intensive medical interventions, I CONCLUDE that obtaining the help he needs is his mother’s obligation, and not that of the school district. Relative to the tort claims which are at the heart of this petition, M.R. urges that under the Supreme C ourt decision in Fry v. Napolean Cmty. School , 137 S. Ct. 743 (2017), s he must exhaust her administrative remedies before bring ing thes e c laims elsewhere. Petitioner misapprehends the import of the Fry decision. Under Fry, a petitioner must exhaust t he IDEA’s procedures before filing a claim under Section 504 of t he R ehabilitation Act , or similar laws, o nly when a suit “seeks relief th at is also available under the IDEA.” Fry 137 S. Ct. at 752. Subsequent case law cla rifies that a 3 My description of the homebound program as “ineffective” should not be construed as a determination that the sch ool district denied FAPE to M.M. Homebound instruction’s lack of succe ss is due to the seriousness of M.M. ’s difficulties. This nonetheless was the program requested by the child ’s physician. It now continues based on the recommendation of a school app ointed psychiatrist, and at the family ’s request. Homebound instruction thus is being provided as an accommodation to the family ; and should not be viewed as a failure by the district to meet its obligations under special education law. But I also feel strongly that something more can and should be done for M.M. What that “more” is must be determined by the parties through the collaborative process envisioned by the IDEA.

OAL DKT. NO. EDS 09244-19 11 court is r equired to consider the g ravamen of a complaint to determine if a plaintif f seeks relief for denial of the IDEA ’s core guarantee of FAPE. Then, a nd only then, is exhaustion required. See: Wellman v Butler Area Sch. Distr ., 877 F . 3d 125, 131 (3rd Cir., 2017). Tort claims are the essence of the petition before me. The IDEA affords no remedy for tortious conduct; exhaustion is thus not required under Fry’s holding. Our courts have recognized that the “IDEA’s primary purpose is to ensure [a ] FAPE, not to serve as a tort -like mechanism for compensating personal injury.” Nieves-Marquez v Puerto-Rico, 353 F. 3d 108, 124 -6 (1st Cir. 2003). Nor are compensatory and punitive damages available under the IDEA. See: Chambers v Sch. Dist. of Phila. B d. of Educ., 587 F. 3d 176 (3rd Cir., 2009). It is inconceivable that the Fry Court’s r uling was intended to turn this well-established law on its head. The filing of tort cla ims here is frivolous; adds stress to an already overburdened system ; and is a d isservice to M.M., the Uni on Township Sch ool District, and to a ll the stakehold ers i n New Jers ey who utilize our special education due process system. Special ed ucation due process is not intended as a platform for cl aims for unrelated damages. Due process under the IDEA was designed to ensure that children receive FAPE in real time. It is thus ironic, and more than a bit sad, th at a petition that describes a child who is struggling mightily seeks nothing that will truly change his circumstances, focusi ng instead on money .4 A dismissal of this petition will refocus these parties, I hope, on what is most important for M.M.; his health and his educational future. 4 Attorney’s fees, also sought by the petition, are likewise unavailable in this forum. Instead, the prevailing party in an administrative proceeding is required to bring a separate judicial action to recover th ese fees. 20 U.S.C.A. § 1415(i)(3)(B), See Chang on behalf of Chang v. B d. of Educ., 685 F. Supp. 96, 99 (D.N.J. 1988) (holding that a complainant in an administrative proceeding must bring a separ ate action in order to recover attorney fees). And claims arising under the New Jersey Anti-Bullying Act, N.J. S.A. 18A:37-14, likewise are not cognizable here.

OAL DKT. NO. EDS 09244-19 12 ORDER It is ORDERED as follows: 1. The Board will provide 14 6 make-up hours of instruction to M.M., and any remaining claims for compensatory education are DISMISSED as moot. 2. The claims for resumption of homebound instruction a re DISMISSED as moot. 3. The Board, through its Child Study Team, is directed to attempt to offer ten hours per week of instruction to M .M. together with the behavioral services provided via the November 2018 IEP. It is understood that these services can o nly be delivered to the ex tent that M.M . is able to make himself physically and emotionally available for instruction. 4. To t he extent that additional doctor ’s notes are needed to continue homebound services, petitioner will cooperate with district requests for such documentation. 5. The parties will meet as an IEP Team on or before January 31, 2020, and discuss next steps f or M.M., including but not limited to proposed educational p lacements by the district, and a discussi on of the efforts being made by M.R. to address M.M’s medical needs. 6. The remaining claims of the petition for medical care; relief under the Anti- Bullying Act; the claims that the Board, through its personnel, proximately caused damages to M.M. ; and the cl aims for compensatory dama ges, punitive damages and attorney ’s f ees, are DISMISSED for l ack of jurisdiction. 7. If the parties are unable to reach accord at the January 2020 IEP meeting, the IDEA due process procedures remain available to them. 8. The January 14 , 20 20, hearing date will not be necessary, and i s adjourned.

OAL DKT. NO. EDS 09244-19 13 This decision is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and 34 C. F.R. § 300.514 (201 8) and is appealable by filing a complaint and br inging a civil actio n 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 (201 8). If t he parent or adult student feels that this decision is not being ful ly implemented with respect t o program or services, t his concern should be communicated in writing to t he Director, Office of Special Education. January 3, 2020 DATE ELLEN S. BASS, ALJ Date Received at Agency January 3, 2020 Date Mailed to Parties: sej