PR and AR obo PR v Wayne Township BOE | Case 11066-20 | 2020-12-16

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION - EMERGENT RELIEF OAL DKT. NO. EDS 11066-20 AGENCY DKT. NO. 2021-32336 P.R. AND A.R. ON BEHALF OF P.R., Petitioners, v. WAYNE TOWNSHIP BOARD OF EDUCATION, Respondent. ___________________________________ P.R. and A.R., petitioners pro se Carolyn R. Chaudry , Esq., for respondent Wayne Town ship Board of Education (Scarinci and Hollenbeck, attorneys) Record Closed1: December 16, 2020 Decided: December 16, 2020 BEFORE GAIL M. COOKSON, ALJ: Petitioners P.R. and A.R. filed their due process petition on or about April 14, 2020, on behalf of their son P.R., who is fourteen years old and in eighth grade in the Wayne Township Board of Education (District). [OAL Dkt. EDS 4308-20.] On or before 1This matter is final with record closed only as t o the Application for Emergent Relief. As set forth below, the due process petition remains at the OAL.

OAL DKT. NO. EDS 11066-20 2 that date, the District filed a separate petition seeking an order denying a parental request for

OAL DKT. NO. EDS 11066-20 3 independent evaluations. [OAL Dkt. EDS 4322-20.] It is not disputed that P.R. is entitled to special educational services under the Individuals wi th Disabilities Education Act (IDEA), 20 U.S.C.A. §1400 et seq., as a child classified with Autism . On or about March 30, 2020 , the parents and the CST convened for an Individual Education Plan (IEP) review meeting. The challenged IEP set forth that P.R. would be educated at an out-of-district placement at the Mount Carmel Guild School in West Orange , New Jersey. The petitioners did not agree with this placement because of major safety and educational concerns on their part. The Office of Special Education Programs (OSEP) transmitted the petitions to the Office of Administrative Law (OAL) on or about April 22, 2020. The cases were assigned to the Honorable Ellen S. Bass, A.L.J. On or about May 14, 2020, hearing dates were set down f or July 20-22, 2020. In June 2020, the matters were re -assigned to the undersigned. Numerous case management and settlement conferences have been conducted in th e interim, including on some of the s cheduled and rescheduled hearing dates. The current Cov id-19 state of emergency has impacted both the processing of these cases and the underlying educational program for P.R.: (1) Mount Carmel no longer had an opening for P.R. in September 2020 ; and (2) petitioners opted for all -virtual learning for P.R. because of an at-risk, multi-generational household. Accordingly, many of our off -the-record discussions have revolved around a n appropriate placement when and if petitioners agree that P.R. can be taught in-person. On or about December 3, 2020, petitioners filed an application for emergent relief with OSEP seeking an immediate placement of P.R. in the autism program at Caldwell University because their son is in crisis and has not had a full day of school allegedly since September 2019 . Apparently, and as d iscussed herein, this was triggered by a settlement proposal floated by the District in mid-November. OSEP transmitted just the emergency application to the OAL on December 4, 2020. Because of the underlying due process petition, the request for emergency relief was also assigned to the undersigned. The District filed a Letter -Brief in Opposition and support ing certifications prior to the argument on December 16, 2020. The emergency application was scheduled for oral argument on December 16, 2020, on which date the record closed.

OAL DKT. NO. EDS 11066-20 4 LEGAL DISCUSSION AND CONCLUSIONS OF LAW For the reasons set forth on the reco rd and after due consideration of the written submissions and oral argument received, I CONCLUDE that petitioners ’ request for emergent relief must be DENIED. Pursuant to N.J.A.C. 6A:14-2.7(r), emergent relief shall only be requested for the following issues: i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, including manifestation determinations an d determinations of interim alternate educational settings; iii. Issues concerning placement pending the outcome of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. Here, the application for emergen t relief concerns placement pending the outcome of due process proceedings in accordance with N.J.A.C. 6A:14 -2.7(r)(1)(iii). Before analyzing the legal criteria for emergent relief, it is important to recognize the “stay-put” provision under the Individua ls with Disabilities Education Act ( “IDEA”), 20 U.S.C.A. § 1400, et seq.; 20 U.S.C.A. § 1415(j). That provi sion and its count erpart in the New Jersey Administrative Code require that a child remain in his or her current educational placement “during the pendency of any administrative or judicial proceeding regarding a due process complaint. ” 34 C.F.R. § 300.51 8(a); N.J.A.C. 6A: 14-2.7(u). The stay-put provision functions as an automatic preliminary injunction and it assures stability and consistency in th e student's education by preserving the status quo of the student's current educational placement until the proceedings under the IDEA are finalized.

OAL DKT. NO. EDS 11066-20 5 Drinker v. Colonial Sch. Dist. , 78 F.3d 859, 864 --65 (3d Cir. 1996) ; Susquenita Sch. Dis't v. Raelee S., 96 F.3d 78, 82 (3d Cir. 1996). Therefore, petitioners, who are seeking to alter the status quo or change t he stay-put placement, have the burden of satisfying the requisite emergent relief standards. As set forth in N.J.A.C. 1:6A -12.1(e), N.J.A.C. 6A:14 -2.7(s), and N.J.A.C. 6A:3-1.6(b), codifying Crowe v. DeGoia , 90 N.J. 126 (1986), an application for emergent relief will be granted only if it meets all four of the following requirements. The touchstone of emergent relief is whe ther irreparable harm wil l befall the petitioning party prior to the ability of the forum to hear the underlying merits of the due process petition. Thus, it is well established that a judge may order e mergent relief if the judge determines that the balan ce of equities favors gra nting relief. My. determination is controlled by N.J.A.C. 1:6A-12.1, which provides that a judge may order emergency relief pending issuance of the final decision in a special e ducation matter if it appears from the proofs that: 1. The petitioner will suffer irreparable harm if the requested relief is not granted; 2. The legal right underlying the 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. See also N.J.A.C. 1:1-12.6; N.J.A.C. 6A:14-2.7(s); and Crowe v. DeGioia , 102 N.J. 50 (1986), which echoes the re gulatory standard for this extraordinary relief. It is well established that a moving party must satisfy all four prongs of the regulatory standard to establish an entitlement to emergent relief. See also: Crowe at 132-35. I CONCLUDE that petitioners cannot meet the standard for an award of emergent relief and that their application must be denied.

OAL DKT. NO. EDS 11066-20 6 As stated, and supported by the District, in the special education context, irreparable harm is general ly substantiated when there is a substantial risk of ph ysical injury to the child, or others, or when there is a significant interruption in or termination of educational services. M.H. v. Milltown Board of Education , 2004 N.J. AGEN LEXIS 677 (OAL Dkt. No. EDS 8411-03). For example, in S.V., M.R. and G.R. o/b/o K.V., E.R. and F.H. v. Board of Educ. of the City of Camden , 2012 N.J. AGEN LEXIS 537, the Court found n o irreparable harm where students are left in their current placements which parents are clai ming are not in general providing an appropriate educat ion but provide no credible evidence to support their claims. See also J.P. o/b/o J.P. v. Pemberton Bd. of E duc., 2001 N.J. AGEN LEXIS 278, *29 -30 (finding that compensatory serv ices available under th e IDEA is a form of relief which resembles actions to recover damages caused by another.). In M.H., the parents of a five -year old preschool student sought to c hange their child’s agreed upon placement to include attendance at a p rivate out of district school through emergent relief. The ALJ held that the parents were not entitled to emergent relief as the student would not experience irreparable harm if the req uested relief was not granted. In the decision on the underlying due process matter in that case, the ALJ expounded upon his decision, noting that during the emergent relief hearing, he could not make a preliminary determination on the appropriateness of the IEP’s placement to find irreparable harm. M.H., 2004 N.J. AGEN LEXIS 677 at *2. Petitioners’ present emergent application seeks to change their son’s current virtual Covid-19 home instruction wherein he has only b een receiving a couple of hours of in struction per day, some of which they claim he cannot access because o f his emotional and learning issues. They claim that the District is refusing to find a full-time placement for P.R. and that is the heart of this e mergency application : a request to mandate the location of an acceptable out -of-district pla cement, which m akes th eir application similar to that discussed in M.H.. Petitioners describe P.R. as having Post-Traumatic Stress Disorder (PTSD), and is subject to sensory overload and extreme noise sensitivities. Petitione rs have

OAL DKT. NO. EDS 11066-20 7 sometimes argued that their son canno t be placed in a classroom with o ther peers unless they can have veto power o ver the specific peers. They ha ve also argued at times that he is not ready to be in a classroom with any pe ers. They also argue that P.R. has regressed during this period of Covid virtual home instruction and the previous months of in-home instruction. He has becom e more inhibited and socially deficient because of isolation from peers. They acknowledge in this application that “[h]is anxiety and long absence from a classroom will require the care of highly trained pro fessionals to monitor him for safety and psychological reasons. It will be difficult for our son at first and these supports are needed to make sure he transitions smoothly back into social settings with limited negative reactions.” [Pg. 3.] Specifically, petitioners seek o n a n expedite d basis that P.R. be provided with immediate therapeutic ca re in conjunction with a hands -on IEP of a placement with additional upper tier supports of psychological professionals and BCBA supervision. They claim he must be provided with a full -time progra m which can provide close monitoring, so cialization opportunities, and routine physical activities. Petitioners’ research informed them that Caldwell Univer sity Center for Autism and Applied Behavioral Analysis (Caldwell), which has been accepted as a Naples placement, N.J.S.A. 18A:46-14, was an appropriate placement for P.R. Independently and without prior or contemporary notice to the District , petitioners asked Caldwell to undertake an intake of P.R. on or about November 25, 2020 , and set forth that th e center has accepted him for immediat e enrollment . [Caldwell Letter, dated November 30, 2020 .] Accordingly, petitioners herein request an Order mandating P.R. be placed at Caldwell with transportation provided by the District. Respondent argue s that petitioner cannot be granted this e xtraordinary relief in the form of a mandatory, unilateral out -of-district placement because the relief sought is not likely to succeed at a hearing on the merits, and at this emergency stage, cannot be supported. The District also claims that it has been willing and able to provide P.R. with an appropriate educational program sup ported by in -district resources , in a hybrid learning environment of 2:1 in -person support and virtual learning and behavioral supports in the home.

OAL DKT. NO. EDS 11066-20 8 I agree with the District and CONCLUDE that petitioners have not met the Crowe emergent facto rs because p etitioners have also not demonstrated a likelihood of success on the meri ts. It is well-settled that a school district satisfies the requirements of law by providing personalized instruction and sufficient supports services “as are necessary to permit [th e student] to ‘benefit’ from the instruction . G.B. and D.B. o/b/o J.B. v. Brid gewater-Raritan Reg’l. Bd. of Educ. , 2009 U.S. Dist. Lexis 15671(D.N .J. 2009)(citing Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley , 458 U.S. 176, 203, (1982). The IDEA does not require that a school district maximize a student’s potential or prov ide him the best education possible. Instead, the IDEA requires a school district to provide a basic floor of opportunity. Carlisle Area Sch. Dist. v. Scott P., 62 Fed 520, 533-34 (3d Cir. 1995) See also Bayonne Bd. of Educ. v. L.Y. o/b/o J.Y. and Elysian Charter Sch., 2010 N.J. AGEN LEXIS 438, *31-32. I also CONCLUDE that petitioners have not supported their argument that P.R. will suffer irreparable harm. Parents who disagre e with an IEP’s proposed program or placement may make a unilateral plac ement while due process is pending , at their financial risk . N.J.A.C. 6A:14 -2.10. The IDEA authorize s tuition reimbursement for parents who unilaterally decide to place their child in an out-of-district school if the IEP proposed by the school district fails to offer the child a FAPE and the placement the parents chose was appropriate under the IDEA , although not necessarily an unapproved school . Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985); Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993). Therefore, any harm is actually reparable through a later award of tuition reimbursement. The petitioner ’s argument that Caldwell could be approved on an emergency basis as a Naples placement is unavailing. As stated by the c ourts, ”the terminology used in the last sentence of the [N.J.S.A. 18A:46-14 “Naples Amendment”] further clarifies that the Amendment governs only placements recommended by a child study team and effectuated by the [local education agency (LEA)].” Therefore, it has been held that this language makes clear that Naples does not apply to unilateral parental

OAL DKT. NO. EDS 11066-20 9 placements. L.M. v. Evesham Twp. Bd. of Educ., 256 F. Supp. 2d 290, 300 (D.N.J. 2003). It is also premature on this record. A private therapeutic placement, such as at Caldwell, is one of the most restrictive type s of placement and is only granted in very limited circumstances. N.J.S.A. 18A:46 -14. See 20 U.S.C. § 1412(a)(5)(A); Oberti v. Bd. of Educ. of Clementon Sch. Dist. , 995 F.2d 1204, 1214 (3d Cir . 1993). This forum can only reach a conclusion for such a placement on a comp lete record and only after the District has had the opportunity to carry its burden of proving that the IEP provided FAPE to P.R. Furthermore, I CONCLUDE that petitioners ’ objections and concerns about an unexecuted proposed settlement position of the District is neither a compellin g nor a lawful basis upon which to grant emergent relief. The settlement proposal presented to petitioners by the District under cover of November 13, 2020 , has not been agreed upon by both parties . It is entirely inappropriate for its outline to be considered as evidence of a nything other than an attempt at a resolution. Under the well -established principle that discussions toward an amicable reso lution are most fruitful when they are conducted in confidence and without fear of publication, s ettlement proposals may not be submitted into the record. See, e.g., N.J.R.E. 408. “[T]here is a vital public policy in encouraging voluntary dispute resolution that would be thwarted if a settlement proposal could only be made at the peril of knowing that it could be used in court against the maker of the proposal if no settlement was achieved.” Wyatt [v. Wyatt], 217 N.J. Super. [580,] 586 [(App. Div. 1987)]; see also McCormick on Evidence § 266 at 411 (Strong ed., 5th ed. 1999) (noting the “social desirability of promoting settlements of controversies over disputed claims”). Accord Ciolli v. Iravani, 625 F. Supp. 2d 276, 285 (E.D. Pa. 2009 ). New Jersey Evidence Rule 408 reflects this tradition . Brown v. Pica, 360 N.J. Super. 565, 570 (Law Div. 2001). In sum, petitioners’ demand that I review and reject a proposed and unex ecuted settlement offer in favor of their unilateral , preemptive pla cement of P.R. at Caldwell

OAL DKT. NO. EDS 11066-20 10 must be denied. The issues involved in an appropriate placement in the least restrictive setting are complex and must abide a plenary hearing or a new IEP.2 ORDER ACCORDINGLY, it is ORDERED that petitioners’ application for emergent relief is and the same is hereby DENIED. This decision on application for emergency relief shall remain in effect until the issuance of the decision on the merits in this matter. The hearing having been requested by the parents, this matter is he reby 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 conc ern should be communicated in writing to the Directo r, Office of Special Education Policy and Dispute Resolution. December 16, 2020 DATE GAIL M. COOKSON, ALJ Date Received at Agency 12/16/20_________________________ Date Mailed to Parties: 12/16/20_________________________ id 2 In fact, i t appears that t he March 2020 IEP which formed the basis of the pending due process petition might be moot and in need of immediate amendment due to circumstances outside the control of either party because of both Covid and the lack of the designated out -of-district placement speci fied therein. This will have to be the subject of a separate determinat ion on those other OAL matters. I have required expedited briefing on th e issue of mootness insofar as negotiations have f ailed to result in a mutually agreeable replacement IEP.

OAL DKT. NO. EDS 11066-20 11 LIST OF EXHIBITS IN EVIDENCE For Petitioner: P-1 Naples exemplar For Respondent: None.