RA obo HA v Middletown Township BOE | Case 07849-21 | 2022-09-28

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION OAL DKT. NO. EDS 07849-21 AGENCY DKT. NO. 2022-33283 R.A. ON BEHALF OF H.A., Petitioner, v. MIDDLETOWN TOWNSHIP BOARD OF EDUCATION, Respondent, and B.A., Intervenor. Michael Flom, Parent Advocate, for petitioner R.A. on behalf of H.A., pursuant to N.J.A.C. 1:1-5.4(a)(7) Eric L. Harrison, Esq., for respondent Middletown Township Board of Education (Methfessel and Werbel, P.A., attorneys) B.A., intervenor, pro se Record Closed: September 6, 2022 Decided: September 28, 2022 BEFORE DEAN J. BUONO, ALJ:

OAL DKT. NO. EDS 07849-21 2 STATEMENT OF THE CASE R.A. and B.A. are divorced and both parents have joint legal cu stody over H.A. The father , B.A. , has primary physical custody (i.e., parent of primary residence) . In May 2021 , H.A. was first classified as Other Health Impaired and beg an receiving special education and related services. Then on June 28, 2021, H.A. was declassified with the sole consent of the father, B.A. R.A. (parent/petitioner), on behalf of her daughter H.A. (daughter/student), filed a due pr ocess petition against respondent , Middletown Board of Education (Middletown/District), contending that the District should n ot declassify H.A. from its previous determination of eligibility for special education and that H.A. was eligible for special educ ation and related service s under the catego ry of Other Health Impaired (OHI). Petitioner seeks Independent Education Evaluations (IEE) and compens atory education. Again, B.A. consented to the declassification on June 28, 2021. The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., requires a public school district to provide its students with a free appropriate public education (FAPE). At issue was whether H.A. should contin ue to be classified as disabled, and, if so, is an IEE needed. PROCEDURAL HISTORY On or about August 12, 2021, R.A. filed a petition for due process and the District responded. The New Jersey Departme nt of Education, Office of Special Education Programs transmitted the matter to the Office of Administrative Law (OAL), where it was filed as a contested case on September 20, 2 021, under OAL Dkt. No. EDS 07849-21 and assi gned to Judge Buck. B.A. joined as an int ervener. On December 8, 2021 , petitioner submitted a writing where she phrased her argument as a motion for emergent relief; requesting an order for stay put ( reclassify H.A.) and ordering an IEE. Though not in t he proper form of a mo tion, it was conside red as such. On December 21, 2021, the district filed a due process petition seeking an order denying the request for an IEE under OAL Dkt. No. EDS 00052-22.

OAL DKT. NO. EDS 07849-21 3 On January 3, 2022, the Due Process hearing began but was not concluded. On January 12, 2022 , R.A. filed a mo tion for emergent relief to reclassify H.A. On, February 3, 2022, with consent of parties, final arguments were heard on the emergent relief motion and Judge Buck issued a decision from t he bench denying both requests for relief (stay put/re classify H.A. and order IEEs) . On February 3, 2022 , R.A.’s prior attorney (services terminated on February 7, 2022) filed a motion for summary decision, in reference to the District’s Due Process petition (EDS 00052-22) then on February 14, 2022, the District filed a cr oss-motion for summary decision (again specifically in reference to its o wn petit ion, EDS 00052-22). In late February 2022, R.A. filed a complaint in federal court against Judge Buck and the attorney for th e District alleging constitutional violations. Judge Buck recused himself from this case. These cases were assigned to the unde rsigned on February 23, 2022. A telephone confere nce was conducted on March 23, 2022 , to de termine the i ssue of consolidation and issues at trial. The undersigned entered an Order of Consolidation on March 24, 2022, in accordance with the parties’ agreeme nt that the matters should be consolidated. Also on March 23, 2022, the representative of R.A., requested another ruling on t he Motion for IEE s. It should be no ted that issue was already ruled on by Judge Buck. On March 25 , 202 2, R.A. filed a series of documents requesting a Protective Order that Eric Harrison, attorney for the District, be restricted and “[p]rohibit any sharing, directly or indirectly with B. A. by the District, directly or indirectl y, any information about: A. the identity (including name, affiliation, contact information) of and, B. the dates and times of any observatio n by R.A.’s experts or i ndependent e xperts ordered by the Court, even if the in formation is entered into the H.A. studen t file, until the expert begins testimony at a hearing .” Petitioner’s writing again was phrased in the form a motion. Although n either were filed in the proper form, I consid ered both as Motions, o ne for IEE s a nd one for a Prote ctive Order . After consideratio n of the documents, an Order den ying both requests but granting the District ’s Motio n was provided on March 30, 2022. So, the only issue to be decided was the appropriateness of the declassification.

OAL DKT. NO. EDS 07849-21 4 The undersigned realized that after t he order on the motions was issued, the order did not properly reflect the outcome of the cases and they needed to be severed . After consideratio n of the document s, an Or der denying both requests was provided. However, the District’s request for Summary Decision was granted and an Order was sent out. The hearing reconvened on April 1, 2022. After consideration of the procedural aspect of grantin g the District’s m otion, I realize that an Initial Decision was the proper form for EDS 00052-22 and had to be drafted to that end. The hearing reconvened on May 26 , 20 22, June 9, 2022 , and June 29, 2022. The record was supposed to close on August 29, 2022, at the request of the parties with the submission of post-hearing wri tten closing summations. Respondent and B.A. submitted their closings on time, however, petitioner through her advocate proposed a date that was convenient for the advocate to submit her closing summation. Petitioner submitted her closing summation on September 6, 2022 , with the suggestion that I permit a speech and language evalu ation of H.A. to be considered as evidence and suggested filing a mot ion t o hold the record open . Nothing was filed. Similar inappropriate gamesmanship was attempted by the advocate during the hearing and not tolerated. The record closed on September 6, 2022. FACTUAL DISCUSSION Background The following FACTS are not stipulated between the parties but derived from the relevant documentation and as such I FIND as FACT: H.A. is twelve years old and the marital child of R.A. and B.A. R.A. and B.A. are divorced, and it remains contentious. Following a custody order issued by the Superior Court, Chancery Division on August 28, 20 14, both R.A. and B.A. were awarded joint legal custody of H.A. , with B.A. designat ed as t he parent of primary residence. An additional civil order issued on March 12, 2021 , by the same pr esiding judge, denied R.A.’s request tha t she be a uthorized to take any and all actio ns necessary to

OAL DKT. NO. EDS 07849-21 5 immediately commence services for H.A. The order affirmed that R.A. and B.A. continue to share joint legal custody over H.A., that neither parent is to ob tain medical services for H. A. wi thout t he other’s consent (outside a true emergency) , and that neither is to enroll their child with a therapist, cou nselor, or doctor w ithout the other’s agreement. The order also stated that B.A., as a parent with joint legal custody of H.A. has an absolute ri ght to obt ain recor ds perta ining to any treat ment or evaluations of H.A. The District in conducting the requi red tri annual reeva luation o f H.A. in June 2021, determined that H.A. was still a student with a qualifying disability, but was not in need of special education and related services as his disability did not adversely affect his educational performance. During the subsequent CST meeting to review the results of the evaluations the District rec ommended that H.A. be decl assified. H.A. was then voluntarily dec lassified by his father, B.A. , on J uly 28, 2021 . Since that date , H.A. continues to remain declassi fied an d ineligible for spec ial education and related services under the IDEA . On or abou t September 17, 2021, R.A . retained three professionals to conduct partial evaluations of H.A. On Se ptember 20, 2021, R.A., through her parent advocate, forward ed to the Di strict copies of the reports by her retained professionals. The District forwarded the reports to B.A. and included R.A.’s advocate on the email advising the parties that in the event either parent shared expert reports concerning H.A. with the District, it would share the copies with the other parent. On or about September 20, 2021, after discovering the evaluations occurred, B.A. sent letters to two of the retained professionals stating that pursuant to the standing court order, H.A. was not to b e examined by a doc tor, therapist, or counselor without B.A.’s consent. He told the profe ssionals they we re not to see H.A. again and warned he would press charges to enfor ce the court order if they saw H.A. again without B.A.’s approval. B.A. has not contacted these professionals since. Nor has he contacted any of the other experts R.A. proposed she may call to testify in her original five-day disclosures, which w ere recei ved on December 27, 2021 . On January 3, 2022, in response to a request by petition er, both B.A. and t he District affirmed that they would not interfere w ith any expert retained by R.A. to observe H.A. while in the ed ucational setting. The District affirmed it would treat any observer retained by R.A. the same as any other observer who came to its schools.

OAL DKT. NO. EDS 07849-21 6 R.A.’s petition stems from the District recommending the declassific ation of H.A. after its triannual reevaluati on of H.A. indicated that while H.A. wa s still a student with disabilities, those disabilities do not adversely affect his educational perfor mance and he is not in need of special education and related services o r speech -language only services. Both parents were presented with the District’s recommendation to declassify, but on July 28, 2021, only B.A. signed his consent to the proposed declassification. R.A. filed a petition for due process on August 8, 2021, requesting—among other things—the reclassification of H.A., a series of IEEs, a series of services with additional services to be included based on the results of th e requested IEEs, and compensatory education. Respondent filed its answer on August 19, 2 021, arguing tha t H.A. demonstrated he was n ot in need of special education and rel ated services and t he evaluations properly conducted by its Child Study Team (CST) likewise indicated that H.A. was not in need of such services. The reevaluation indicated that H.A. may s till need some occupational therapy (OT) services. Consequently, on September 15, 2021, a 504 Accommodation Plan was established providing H.A. with thirty-minute monthly sessions to assist him in improving his writing speed and handwriting skills. During the December 17 , 2021, 504 Plan progress review meeting R.A., through her parent adv ocate, requested the District fund an OT independent evaluation of H.A. Within f our calen dar days the District filed its own due process petition denyi ng the request for an IEE , arguing that as H .A. was voluntarily declassified by B.A. and thus was not eligible for special education and related services under the ID EA, and so not entitled to publicly funded IEEs. During the January 3, 2022, hearing pe titioner decline d to cross -examine the District’s witness and indicated she woul d n ot present her own witn esses due to allegations of harassment and threats by the Di strict and B.A against her potential expert witnesses. After a discussion on the record b etween all parti es involved, B.A. and the District affirmed that they would continue to not interfere with any observations conducted by R.A.’s independent experts of H.A. in his educational setting so long as those experts abided by the District’s policy for all such obs ervers and visitors . B.A.

OAL DKT. NO. EDS 07849-21 7 also affirmed that he would not conta ct any of R.A.’s retained experts outside of direct or cross -examination dur ing a hear ing. R.A., through her pare nt advocate, indicated that after observations of H.A. were conducted she would be prepared to cross-examine the District’s witness and introduce her own witnesses to present their expert testimony. On or about Januar y 12, 2022, R.A. filed a motion for emergent relief seeking to have H.A. reclassified for special ed ucation services pursuant to the IDEA’s stay -put provision. Following oral arguments, on February 3, 2022 , a decision was issued by Carl V. Buck, III, ALJ, denying R.A.’s request for emergent relie f. Also on February 3 , 2022, R.A. filed a motion for summar y decision on the District ’s due process petition . On Febr uary 16 , 2022, the District filed its cross -motion for summary decision on i ts own petition. Petitioner filed suit in federal court against the district’s lawyer and Judge Buck. Judge Buck recused himself from the case. The undersigned was assi gned the case in early March 2022, and on March 24, 2022, f ollowing a status conference regarding the parties’ motions for summary decision, R.A. filed a motion seeking two protective orders. The first was to prohibit the District from sharing with B.A. any inform ation about the exp erts retained by R.A. to observe H.A. until after said experts began presenting their testimony at a hearing. This request included restricting the District’s a bility to disclos e any information abo ut such expert observations contained in H.A.’s st udent records. The second was to order the District to not impose any restrictions on the independent experts’ observations of H.A. it would not impose on its own staf f.1 On March 25, 2022, B.A. filed a l etter response with exhibits, arguing that a prote ctive o rder against him was improper as it would violate his rights as a custodial parent of H.A. and was n ot necessary as he ha d previously consented to observations of H.A. in his edu cational setting as l ong as such observations did not interfere with H.A.’s instruction. The District declined to respond to these motions by R.A. 1 R.A., t hrough her advocat e had been re questing protective ord ers since the party’s settlement conference with Mary Ann Bogan, AL J. R.A. was advised by ALJ Bu ck during the January 3 , 2022, hearing that the OAL does not have the jurisdiction to order protective orders of the type sought by R.A.

OAL DKT. NO. EDS 07849-21 8 With regard to the motions for summary decision, I ordered that R.A.’s motion for summary decision and both protective Orders be denied. However, the District’s motion for summary decision was granted. An order and final decision reflecting the same was sent out so, the only issue to be decided in the case was the appropriateness of th e declassification. Testimony Respondent Marian Enny (LDTC; former case manag er), (Enny) testified on behalf of the District as an expert in the field of sp ecial education generally and in the particular field of a learning disabilities teacher consultant (LDTC). Enny has masters’ degrees in both education and administration and is c ertified by the Sta te both as a teacher of th e handicapped and as a LDTC. Enny testified that she normally write s around sixty IEPs each year. Enny explained tha t as a n LDTC her certifica tion in cludes being a classroom teacher with a special education certification. This means that for CST evaluations she does all the education al evaluations and works with teacher s to develop programs within their classrooms (i.e., accommodations and modi fications). When drafting IEPs she will rely on the expertise of other CST members, but still has sufficient knowledge of the areas e valuated and frequently contributing to an IEP in order to develop the IEP and analyze the results of evaluations. Enny testified that a student with a disability listed in the IDEA a nd New Jersey Administrative Code is not alone enough for a student to be class ified and eligible for special education and related services . Rather, the CST must fi rst determine whether the student’s di sability affects t he student’s access to their educa tion (i.e., the educational impact). And second, whether their disability nece ssitates special education and related services for the student to learn.

OAL DKT. NO. EDS 07849-21 9 While H.A. had been diagnosed with a utism and ADHD, Enny testified that after H.A. moved to the District and the school became familiar with H.A., the CST suspected he did not need to continue having special education in order to access his education. In other words, H.A.’s disabilities did not cause an educational impact. H.A. first moved to the dist rict from Long Branch in the summer of 2020 . Enny testified that although she was not t he case manager for the tran sfer of his IEP , H.A. began school i n the fall , she took on th at role. She testified th at normally she familiarizes herself with the kids s he manag es as part of her r ole on the CST , and although it was more difficult d ue to the COVID restrictio ns she test ified that she became familiar with H.A. through h is tran sfer IEP, classroom observations, and speaking with his teachers and related services’ providers. The transfer IEP only provided for la nguage arts in-class special educ ation support, and related s ervices for speech and occupati onal therapy (OT) . Enny explained that i n-class sup port means a special education teacher would work alongside a gener al education teacher within the general educa tion classroom . Both teachers wo uld teach the student , but t he special education teacher ma y provide modifications, a ccommodations, and focus on wor king toward goals and objectives in the student’s IEP. When H .A. moved to the Di strict, its CST implemente d the transferred IEP. Stating that as the CST did not kno w H.A. and his needs yet , they followed the prior district’s recommendations and monitored H.A.’s progress over the academic year. For the 2020-21 school year, pursuant to existing COVID restrictions, H.A. began the school year on a hybrid schedule . He was grouped with a cohort of other students based on name , and this group wo uld com e in -person two days a week, and would work remote two days a week, with all students remote on the last day. Around a month into the s chool term, all special education stu dents were given the option to come in - person all five days, or to remain wi th their cohort. The school left this decision up to the student and their p arents on which choice was best based on the student’s needs.

OAL DKT. NO. EDS 07849-21 10 Enny testified that she believed H.A. primarily remained with his cohort but may have chosen to remain remote for additional days as well. Prior to the re evaluation assessments Enny testified that H.A.’s classro om teachers reported that he was doing well, and they were pleased with his progress. The teachers reported that H.A. occasionally n eeded s ome r eminders to re focus b ut this was not an issue of significant concern among H.A.’s teachers. H.A.’s annual revi ew meeting was scheduled for May 2021 . Sinc e his tri annual reevaluation was due later in August the CST decided that it would be more convenient for the parties involved if H.A.’s reevaluation planning meeting happene d during the regular annual review meeting. The purpose of the reevaluation planning meeting was to determine what evaluations would be appropriate. Enny testified that the District issued an IEP for H.A. in May 2021, as at that time the evaluations had not been complet ed and although there were positive reports from the teachers the CST de termined that it would be appropriate to do a complete reevaluation to substantiate the teachers’ reports. Regarding the disagreement between R.A. and B.A. in approvin g H.A.’s declassification, Enny testified that from her perspective as H.A.’s case manager and as an expert in spe cial education, she understood the custody order gave R.A. and B.A. joint custody over H.A. and named B.A. as the primary custodian. She testified that she believed the document meant both had educational decision-making authority regarding H.A., and that only one parent needed to consent to educational de cisions for the school to have the required parental consent and to implement the plan. Enny utilized the Woodcock-Johnson t est for H.A.’s educational ev aluation, specifically t he oral language and test of achievement. Enny testified that an educational evaluation a ssesses the st udent’s actual academic achievement while a psychological evalua tion looks at th e stud ent’s ability to achieve (i.e., their cogn itive ability). Both portions are important to dete rmine if the student is achieving up to their ability.

OAL DKT. NO. EDS 07849-21 11 In H.A.’s case Enny testified that he scored in the high average range overall (a broad achievement score of 117), and his I.Q. score was 119, and s o determined that he was achieving up to his abili ty. When comparing the results of H.A.’s evaluati on to other students at hi s age l evel H.A. scored average, high average, and in one case, superior. The broad achievement score is determined by comparing the clusters and the clusters’ sub-tests. Enny te stified that to compare a student ’s achievement an d ability, the evaluator looks at the difference from the broad achievement score to the I.Q. score, not bet ween any of the individual subtests or cluster t ests to the I.Q. score. She stated that for examp le, since H.A. has ADHD , the tests which evaluated his listening ability would be l ower as H.A. occasionally need ed redirection or for instructions to be repe ated or clarified. This would automatically low er the score in the subtests even though H.A. was ab le to complete the test itself once h e was given t he repeated or clarified instructions. Enny testified that in her professional opinion, b ased on the Wood cock-Johnson evaluation there was not a signific ant discrepancy between H.A.’s educational achievement or performance and his ability to achieve. She also testified that there was nothing in the standard scores which indicated there might be an area of di sability that was n ot being adequately inves tigated through the evaluations. As Enny evaluated H.A. she thought he was doing so well he might not need special education, b ut she did n ot make a predetermination and remained objective during the evaluation process. For the t hree other evaluations (speech-language, OT, and psychology) Enny’s testimony was that H.A. scored generally average to above average, and that she relied in part on the evaluations and discussions with the evaluat ors in making her determination. She test ified that she is able to opine as to the educational significance of the other evaluation results due to her expertise in the field and experience in drafting IEPs and performing IEP evaluations and reevaluations. Finally, Enny testified that the evaluations did not indicate that H. A. was n ot being sufficiently tested in an ar ea of suspected disability and that the evaluation results did not indicate that H. A. ne eded

OAL DKT. NO. EDS 07849-21 12 special education or related services in order to access his educatio n or succeed academically. At the conclusion of H.A.’s re-evaluation OT support was recommended because H.A.’s handwriting weakness was an ar ea of c oncern. But as H.A .’s final gross motor skills were not impeding his access to edu cation, Enny testified that the CST determined, in c onsultation with the occupational th erapist, that a 504 Plan cou ld provide some continued services to assist H.A. with im proving in this are a without requiring H.A. to remain improperly classified. Enny wrote the final re-evaluation eligibility de termination after the evaluat ions were completed and she met with each o f the evaluators . The determination included H.A.’s report card grades, a summary of the evaluations, and reports by H.A.’s teachers on his ability to perform in class. Enny testified that report card grades are included as they are indictive of how a st udent is performing daily in the different subject areas, as compared to how a student does on an evaluation test . Since how a student perf orms during an evaluat ion can vary slightly depending on a number of fact ors including how the student is feeling that day. She also stated that H.A.’s teachers reported he was not given modified work nor a modified grade , nor did his IEP state that modif ied work was needed in order for H.A. to access what the rest of his class was working on. Regarding H.A.’s 504 Pla n, Enny worked with Ms. Newman in developing the Plan which was implemented before the start of the 2021-22 school year. The plan was based on the occupational t herapist’s re commendations and provided H.A. with individual services once a month for thirty-minute sessions. In Enny’s professional opinion —which was based on the ev aluation res ults, teacher reports, H.A.’s report card grades , and H.A.’s standardized test scores—H.A. does not need special education and related servi ces and his disabilities are not impeding his ability to access his education and learn. H.A. participated in the school’s gifted and talented program from the middle of the first marking p eriod through the end of the 2020-21 school year. And at the end of

OAL DKT. NO. EDS 07849-21 13 H.A.’s sixth grade year w as recommended for honors math and honors language arts classes, which he is currently a ttending. Enny testified that he is currently recei ving straight A’s in his classes and is on the high honor roll. On c ross-examination, R.A. attempted to establish t hat the Dis trict and B.A. purposefully excluded her from the IEP meeting by not accommodating her needs for a time change. But in the video (R-9) it is purported that R.A. could not attend but wanted the meeting to proceed without her. “If she said no, I would not have proceeded without her.” Although R.A. was not present for the meeting, “she was permitted to participate by telephone but c hose not to log-in.” Also, “confident that sent the recording to bot h parents.” As the email states, it was sent under a separate email to R.A. Nevertheless, R.A. claimed that she never received the email. (P-14.) Despite the fac t that the proposed IEP and reevaluation plan was tentative for fifteen ( 15) days, here, it was a pproved by B.A. appro ximately fourteen ( 14) minutes later, so it became effective at that time. B.A. consented as th e joi nt parent with physical cu stody that is why it became effective . R.A. was giv en the oppo rtunity to participate in the meeting but did not. She admitted that R.A. was n ot able to attend the meeting but stated that they should continue anyway. “If she said ‘no’ then I would not have proceeded. ” Enny was also confident that she sent both parents the recording of the IEP meeting. Also, H.A. is a very bright child and although there were discrepancies in the scori ng, there was no need for anymore special edu cation. The response to R.A. ’s objection to declassification was that she filed for Due Process but B.A. consented to th e declassification less than an hour after the meeting.

OAL DKT. NO. EDS 07849-21 14 Petitioner Lauren Cordero has been a t eacher for eight years and is quali fied in special education as well as having a master’s degree in education Literacy. She taught H.A. in seventh grade Language Arts this past school year (2021-2022). H.A. works independently, fo llows rules an d applies that to all his writing an d ess ays which are primarily typed. But his handwriting is legib le with low average speed. He needs “minimal assistance” and is always “on task.” He needs no accommodations in the form of extra time or help and never complains. Never hands assignments in late. H.A. had an “F” grade on an assignment due to him not setting it up in the correct form. However, that was an anomaly. In the third marking period class score detail revealed H.A. did well, a B+ (85-89) but he had an A average for the year. She has experience delivering special education and he does not need those services despite his diagnosis of ADHD and Autism. B.A. is the fath er of H.A. and was marri ed to R.A. They are divor ced. B.A. testified that a TRO (temporary restraining order) that R.A. has on B.A is frivolous. He admitted that H.A. never got ABA therapy because R.A. objected to the names of all of the doctors that he presented. The Orders from the Family Court dictate that ABA is required. So, he wanted to send H.A. to the Proud Moments program but R.A. objected to that as well, so H.A. never went. At no point did B.A. advise anyone at the program that the y could n ot use his medical insurance. BCBA Lisa Spano offered to do observations of H.A. but he did not authorize it. He recalled that R.A attempt ed to have H.A. committed and take him to evaluation after evaluation . As a re sult, B.A. obje cted because it was n ot necessary and not helpful for his son . There was no attempt to bribe H.A. or influence him in any way. In fact, he had an objection to Judge B uck’s Order for evaluations because “R.A. kept dragging him” and therefore there is an Order prohibiting her from doing so. B.A. did recall the declassification meeting and that someone said he onl y needed a signature to declassify him . B.A. agreed with declassification, so he signed

OAL DKT. NO. EDS 07849-21 15 the documents shortly after. B.A. did not kn ow R.A. was opposed to declassif ication and he was not in “cahoots with the Board of Education.” He only has the interest of his son in his mind. Also, Judge Dalton’s Order did not allow for evaluations and an LDTC is a medical provider. Eric L. Harrison, Esq. testified that he is the attorney for the District and saw that R.A. objected to the declassi fication. However, he indicated that the la w in Ne w Jersey is such that even if one parent objects to a declassi fication, the action is permitted, and the other parent’s recourse is to file a Due Process case. Naema Qureshi , M.D. ’s name, qualifications and testimony was w ithheld by R.A. and her advocate from ev eryone up through the day of her testimony. However , respondent and B.A. did not obje ct to her test imony and only asked that her C.V. and report be provided to them. I permitted her testimony solely on that basis. She is a Board-certified Child and Adol escent Psychiatrist and was qualified as an expert in Child and Adolescent P sychiatry. H.A. was evaluated on May 13, 2022, and June 22, 2022 , and a report followed. (P -31.) Many of the conclusions from the report including “struggling in school” and “emotional distress secondary to schoolwork” are from R.A. More supports in school would be helpful in dealing with his issues. The school did acknowledge his difficulties but still wanted to end serv ices. This is because she is a mental health professional. It is possible that H.A. is not showing the behaviors that he showed in her exam in the school setting, but not likely. Dr. Qureshi testified that she only attended two Zoom meetings with H.A. These were all done when H.A. was in the custody and contr ol of R.A. She found a twelve- year-old boy who was previously diagnosed with atten tion deficit hyperactivity disorder and autis m spectrum disorder. H.A. exhibited high levels of frustration and was ver y rigid and is thinking. He was “focused on preferred areas of interest” and stru ggled to accept alternative viewpoints or suggestions. It was repo rted that H .A. related poorly socially and was inappropriate in his interactions as well as being unable to regulate his emotions and self soothe sufficiently. H.A. demonstrated mood disturbance as well as overeating, sleep disturbance, low e nergy, low s elf-esteem, poor concentration, a nd

OAL DKT. NO. EDS 07849-21 16 feelings of hopelessness. “He had voiced suicidal ideation in the past and has required emergent psychiatric assessment.” Dr. Qur eshi recommended class room obse rvation, therapeutic classroom, neuropsychological testin g, counseling support through scho ol, individual therapy, occupational therapy, access to resource room, soci al skills group, so cial sk ills lunch group and family thera py. However, the assessment and recommendations were duly challenged by the District. On cross-examination, she admitted that she was r etained by R.A. and the information in her report is based on information provided by R.A. and her advocate, Mr. Flom. Dr. Qureshi agreed that if the information she received was incorrect than h er conclusions would likewise be incorrect. Dr. Qureshi claimed that H.A. minimized the difficulties he was having , and that information was coming from his mother. Also, the denial of symptoms was no t credib le because “his affect was off .” Dr. Qureshi continually testified that H.A.’s “affect was off” and it did not match the words he was speaking. Be mindful that both meetings were conducted via Zoom teleconferencing. Also, n o information “struck” her tha t the mother was controlling him. There was a n “incongruence” and there can never be a “false positi ve.” Her conclusions included educational recommendations despite the fact that she never c onsulted with any educators from the District nor B.A. Both BA and the District successfully disapproved many of the facts that Dr. Qureshi relied on to formulate her opinion. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), requires that when a case has a legal aspect to it, that fact has to be considered and the “responsible thing” would be to check o n the patient’s state of mind outside of the primary litigant in a case . Here, Dr. Qureshi did not do that because it was “not what she thought”. The doctor never checked with the father or even discussed the case with the primary custodial parent. She admitted that it “could be stressful” to travel twice per week back and forth between New Jersey and New York between parents’ locations. She never even reached out to the father, nor did she know B.A. was primary custodial parent. She knew the family had a “difficult situation” with the divorce and still did not reach out to the father. There is only one mention in the report that H.A. lives with the

OAL DKT. NO. EDS 07849-21 17 two different parents in two different states but it was actually incorrect. Most all of the information the doc tor utili zed to form h er opi nion came solely from R.A., but she admitted that it could be “useful” to speak to the father, B.A. But, she felt that she had “sufficient information to make her recommendations ” and never requested to speak with the father. “It’s not possible that everything the mother said is false and everything the father said is true.” H.A. would say everything wa s “good”, but his “affect” seemed mo re serious because there w as a visible shift in his exam ination. There was a change in his demeanor and his “affect.” Which is all subjective. Nowhere in the report i s a description of the difference in “affect” or ot her causes of the s tress including the obvious conflict between the parents. The common denominator of the conc lusions of the professionals solely comes from the informat ion of the mother including the nature of any dysfunction. Dr. Qureshi waited until mid-June to ask to observe H.A. in class and at no point did the school district refuse t o h onor the evaluation. Dr. Qureshi was provide d the information from Flom and R.A. that the evaluati on was not permitted by the District, and she was not aware that the District welcomed an evaluation. Although she co ncluded that H.A. need ed a “Therapeutic Classroom” and supports, there was more information needed since most of the information came f rom the mother and two Zoom vis its. Dr. Qureshi was not awa re H.A. was in the King s County Psychiatric hospital and deemed no t suicidal. Finally, she admitted that it was possible that H.A. acted differently in the two different homes. Despite the fact that most of the information that was provided by the mother was different from the father, it would be important for a proper evaluation to consider both. That was not done here. FINDINGS OF FACT It is the duty of the trier of fa ct to weigh each witness’s credibi lity and make a factual finding. Credibility is the value a fa ct finder assigns to the tes timony of a

OAL DKT. NO. EDS 07849-21 18 witness, and it contemplates an overall assessment of the witness’s story considering its rationality, consistency, and how it comports with other evidenc e. Carbo v. U nited States, 314 F.2d 718 (9th C ir. 1963); see, In re Polk, 90 N.J. 550 (19 82). Credibility findings “are often influenced by matte rs such as observations of the character a nd demeanor of witnesses and comm on human experience that are not t ransmitted by the record.” State v. Locurto, 1 57 N.J. 463 (19 99). A fact finder is expec ted to base decisions of credibility on his or her common sense, intuition, or experience. Barnes v. United States, 412 U.S. 837 (1 973). A trier of fact may reject testimony because it is inherently incredible, or because it i s inconsistent with other te stimony or with common experience, or because it is overborne by other testimony. Congleton v. Pura-Tex Stone Corp., 53 N.J. Super 282, 287 (App. Div. 1958). In determining credibility, I do not believe that District employees want to deprive H.A. of a program that augments his educational opportunities while working within the parameters of the law and regulation. Here, it is decl assification. I am also aware tha t the parents want the best educational opportunity for H.A. Here, one parent believes in declassification and the other does not. It is for me to decide. However, R.A.’s attempt to hide the identity and documents from the District of Dr. Naema Qureshi was disturbing and not appropriate bu t I allowed her testi mony in an attempt at any information that would not favor declassification as appropriate. This was not done by R.A. No witnesses pr esented by R.A. assisted in that determination. In fact, they bolstered the declassification determination. Dr. Naema Qureshi only spoke with and accepted the opinion of R.A. and her advo cate in formulating her opinion. At no time did she attempt to elicit B.A.’s input, which clearly was contrary to R.A.’s, despite having knowledge that there was a contentious divorce. On top of that, much of the information that she relied on was untrue and falsified. Her conclusions that his “affect was off” and no information “struck” her that the mother was controlling him and t here was an “incongruence” are all very subjective feeli ngs from a Zoom meeting with information from only one parent. That is not qualified objective data that supports a finding consistent with established science. Interesting is the comment she made w hen she said that she had “sufficient information to make her recommendations” and that “it’s not possible that everything the mother said is false and everything the father said is true.” I

OAL DKT. NO. EDS 07849-21 19 take exception to having hal f o f the information when making a medical recommendation here. In this case, I do not find that there i s necessarily an issue of credibility as mu ch as there is an issue of experie nce and knowledge of the law regarding declassification. As such , I a ccept the information set forth by the District. I FIND as FACT that t he testimony of all of the witnesses was credible to the extent of considering and implementing declassification. Here, the information provided by the District is clearly the overriding factor and ample proof that FAPE was provided, and all arguments were considered when pursuing declassification. As such I FIND them all as FACT. LEGAL ANALYSIS AND CONCLUSIONS The Individuals with Disabilities Education Act (IDEA or the Act), 20 U.S.C. §§ 1400 et seq., requires New Jersey to effectuate procedures that ensure that all children with disabilities residing in the state have available to them a FAPE consisting of special education and re lated services provid ed in conformity with an IE P. 20 U.S.C. §§ 1401(9), 1412(a)(1). A purpose of the IDEA is: [T]o ensure that all children with disabilities have available to them a fre e a ppropriate public educat ion that e mphasizes special ed ucation a nd related services de signed to meet their unique needs and prepare them for further edu cation, employment, and independent living. [20 U.S.C. § 1400(d)(1)(A).] Under 20 U.S.C. § 1412(a)(1), any state qualifying for federal assistance u nder the IDEA must adopt a policy that assures all children with disabilities the right to a free appropriate public education. Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 18 0-81, 102 S. Ct. 3034, 3037 , 7 3 L. Ed . 2d 690, 696 (1982). State regulations track this requirement that a local school district must provide FAPE as that standard is set under the IDEA. N.J.A.C. 6A:14-1.1. New Jersey f ollows the federal standard requiring such entitlement to be “sufficient to confer some educational benefit,” although the State is not re quired to m aximize th e potential of handicapped childr en.

OAL DKT. NO. EDS 07849-21 20 Lascari v. Rama po Indian Hills Reg. High Sch. Dist ., 116 N.J. 30, 47 (1989) (citing Rowley, 458 U.S. at 20 0, 102 S. Ct. at 30 48, 73 L. Ed. 2d at 70 8). Thir d Circui t decisions have further refined that standard to clarify that such educational benefit must be “m eaningful,” “achieve significant lear ning,” and confer “more than mere ly trivial benefit.” T.R. v. Kingwood Tp. Bd. of Educ., 205 F.3d 572 (3d Cir. 2 000); Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238 (3d Cir. 1999); Polk v. Cent. Susquehanna Intermediate Unit 16, 853 F.2d 171, 183-84 (3d Cir. 1988), cert. den. sub. nom., Ctr. Columbia Sch. Dist. v. Polk, 488 U.S. 1030, 109 S. Ct. 838, 102 L. Ed. 2d 970 (1989). The T hird Circuit has re -emphasized the importance of th e inquiry int o whether the placement proposed by a district will provide the student with a “meaningful educational benefit.” S.H. v. State -Operated Sch. Dist. of N ewark, 336 F.3d 260 (3d Cir. 2003) . The quantum of education al benefit necessary to satisf y the IDEA va ries with the potential of each pupil. N.E., 172 F.3d at 247. The basic tenant for that education is an education w hich offers the stu dent an opportunity for m eaningful learning, considering the child’s p otential. Ridgewood, 172 F.3d at 247 wherein the Cour t found that meaningful education must be more than de minimis. New J ersey has adopted th e standards se t forth b y the United States Supreme Court and the Third Circuit. Lascari, 116 N.J. at 47-48, wherein it was foun d that the Di strict is no t required to provide the best education available. See R.D. and A.D. for C .D. v. Delran Board of Education, 2001 WL 8 30871 ( N.J. Adm. 2001 ). Therefore, if the Di strict through the applicable IEP is reasonably calculated to provi de more than a de minimis benefit, then the school district has met its obligation under the IDEA. CV.J. and D.J. o/b/o B.J. v. Ocean City Board of Ed ucation, 2004 WL 763590 (N.J. Adm. 2004). Thus, the i ssue is whether the I EP proposed and implem ented by the Dist rict during the school year was appropriate for H.A. and offered FAPE in the least restrictive environment. The n, thereafter, the ques tion is whether the District appropriately declassified H.A. at the end of that school year. The witnesses proffered by the respondent, were all qua lified and very familiar with t he IEP and educational se rvices p rovided by the District. They all testified

OAL DKT. NO. EDS 07849-21 21 regarding H.A.’s progress. The District in conducting the requi red reevaluation of H.A. determined that he was still a student with a qualifying disability but was not in need of special educat ion and related s ervices as his disabil ity did not adver sely affect his educational performance. During the subsequent CST meeting to review the results of the evaluations the District recommended that H.A. be decl assified. Here, the District presented competent evidence from experts in special education and general education – including one who actually taught H.A. for nearly a full school year prior to testifying – that H.A. does not have a disability which adversely affects his educational performance and that H.A. is not in need of special education and related services. Although the witnesses questioned by the petitioner were direct and clear, they provided no information bolstering her agenda. In fact, they all testified in support of the position taken by the respondent. Also, Dr. Naema Qureshi failed to give a complete picture of the psychiatric nor educational landscape of H.A. The nearly sole basis in support of the claim that t he District did not p rovide F APE rested on Dr. Naema Qureshi’s testimony, which alt hough sincere, was not grounded in complete facts nor sound principles of fact gather ed through science. Her testimony was conclus ory and lacked foundational background informatio n that is needed to develop an informed opinion. As an example, she never s poke with B.A. regardi ng H.A. This all the while knowing that B.A. and R.A. were divorc ed. Dr. Naema Qureshi formulated a diagnosis without all of the information available to her which renders her opinion not credible and suspect. I CONCLUDE that based on the persuasive te stimony presented by the District, and the lack of evidence from R.A., the edu cation provided to H.A. was reasonably calculated to offer him FAPE in the least restrictive environment and was not in any way violative of any law. As found above, H.A. has a developmental disability which does not “significantly impact” communication and soci al interaction and in no way adversely affects H.A.’s “educational perform ance.” [Emphasis supplied.] Indeed, concern s about social interaction by the District personnel greatly diminished throughout the school year. His social and behavioral progress made significant progress. There was sufficient credible

OAL DKT. NO. EDS 07849-21 22 proof tha t none o f H.A.’s behaviors were adversely affecting h is educational performance. The CST dutifully considered its ev aluations as well as the independ ent ones. None of them suggested that H.A.’s academic performance was other than good. The other qu estion that n eeds to be addressed is whether the District determination to declassify H.A. at the end of t he school year was proper, of which the District bears the burden of proving the same. In order to s how that H.A. is a student w ith a d isability, a “student with a disability” is defined as a student who has been determined to be eligi ble for spec ial education and related services. N.J.A.C. 6A:14-1.3. A student shall be determined eligible and classified eligible for special ed ucation and related services unde r c hapter when it is determined that the student has one or more of the disabilities defined in (c)(1) through (14) below, the disability adversely affects the student’s educational performance, and the student is in need of special education and related services. Classification shall be based on all a ssessments conducted inclu ding assess ment by chi ld study team members and assessm ent by other specialists as s pecified below. [N.J.A.C. 6A:14-3.5(c)] Thus, in orde r to be el igible for special education and related services, the student must 1) have one o r more disabili ties as defin ed in N.J.A.C. 6A:14-3.5(c)(1)- (14); 2) the disability must adversely affect the stu dent’s educational performance; and 3) the student is in need of special education and related services. That is not the case here. Here i t is undisputed that H.A. has on e of the enumerated disabilities; he has received dia gnoses of autism an d attention deficit hyperactivity disorder (ADHD) an d therefore would fit the definition of “Other Health Impai red” and/or “Autistic.” However, during the 2020-2021 school year H.A. did not experience an a dverse educational impact on account of a disability and he did not require special education services. As such, his declassification was appropriate.

OAL DKT. NO. EDS 07849-21 23 In order to be classified as OHI, N.J.A.C. 6A:14-3.5(c)(9) is applicable. The OHI classification corresponds to children who either: 9. "Other heal th i mpairment" means a disab ility characterized by havin g limited stren gth, vitality, or alertness, including a hei ghtened alertness with respect to the educational environment, due to chronic or acute hea lth problems, such as at tention def icit hyperactivity d isorder, a heart condition, tuberculosis , rheumatic fever, nephriti s, asthma, sickle cell anemia, hemophilia, e pilepsy, lead poisoning, leukemia, diabete s, or any other medical condition, such as Tourette Syndrome, that adversely affects a student's educational performance. A medical assessment documenting the health problem is required. [Ibid.] There is no disp ute of the fact that the District classified H.A. as OHI. However, since no proofs were founded, he was declassified appropriately by the District with the consent of B. A. R.A. attempted to have h im reclassifi ed as “Multiple Disabled” (MD) without any proofs. The question that begs is if H.A. was not classified as OHI than how could he be classified as MD. 6. “Multiple disabilities” means the presence of two or more disabling conditions, the c ombination of wh ich causes such severe educational needs that they cannot be accommodated in a program designed solely to address one of the impairmen ts. Multiple disabilitie s include i ntellectual disability-blindness an d intellectual disability -orthopedic impairment. The existence of two disabling conditions alon e shall not serve as a basis for a classifi cation of multiple disabilities. Eligibility for speech-language service s as defined in this sectio n shall no t b e one of the di sabling conditions for clas sification based on the definition of "multiple disabiliti es." Multiple disabilities does not include deaf-blindness. [Ibid.] Again, there was no evidence at all proffered at any of the hearings to support that claim.

OAL DKT. NO. EDS 07849-21 24 District relied on the concrete evid ence, reports, and tea cher input to find that H.A. no lo nger required special education and related s ervices. I found the District’s reliance o n that information as persuasive. The record is replete with evidence t hat H.A. was making progress and not in n eed of any “special education.” The entire IEP team re ported that H.A. made tremendous progres s and thus no longer needed services. Petitioner offered no credible evid ence to contradict this evidenc e. Dr. Naema Qureshi ’s opinion was conclusory and formula ted without a complete understanding of H.A. and h is history. Arguably, a net opinion. To the contrary, at the time of th e declassification meeting , the IEP team had an in -depth discussion about declassifying H.A. based on all the information available to them. There were objective proofs which confir med the signific ant progress made b y H.A. which w as based on concrete evidence. The witnesses who worked with H.A. on a regular basis were c ompelling and they concluded that the child made tremendous progress and no longer needed special education and rel ated services. Aside from t he fact that B.A. con sented to the declassification and R.A. did not, t here was no evidence presented which showed th at H.A. needed continued special education in order to be successful. New Jersey sc hool districts are not re quired to mai ntain and operate general education school programs for non-disabled students, unless ordered by the State on an individual basis. The evidence presented supports the proposition that H.A. does not require special education and r elated services because he is not a classified student. The u ndersigned commends H.A. on his accomplishments and h opes to hear of his successes in the future. Accordingly, I CONCLUDE that the determination to declassify H.A. was appropriate under the circumstances of this case. I also CONCLUDE that the declassification of H.A. did not deny him FAPE. While it is a pparent that R.A. is a passionate, loving , engaged mother, and wishes he r child to rece ive a s many services a s po ssible, th e IDEA simply does not

OAL DKT. NO. EDS 07849-21 25 require maximization under the facts of this case . H.A. was not deprived of any meaningful educational benefit of the educational program and frankly, is doing well. ORDER For the reaso ns se t forth above, it is ORDERED that the petition of R.A. be DISMISSED. This dec ision is final pursuant to 20 U.S.C. § 1415(i )(1)(A) and 34 C.F.R. § 300.514 (2022) and is appealable by filing a complaint an d bringing a civil action either in the Law Division of the Superior Court of New Jersey or in a district court of the United Stat es. 20 U.S.C. § 1415(i)(2); 34 C.F.R. § 300. 516 (2022). If the parent or adult s tudent 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. September 28, 2022 DATE DEAN J. BUONO, ALJ Date Received at Agency Date Mailed to Parties: DJB/cb

OAL DKT. NO. EDS 07849-21 26 APPENDIX WITNESSES For petitioners Lauren Cordero B.A. Eric Harrison, Esquire Dr. Naema Qureshi For respondent Marian Enny EXHIBITS For petitioner P-1 Invitation, April 23 P-2 Order for Custody P-3 Email, May 17 P-4 Email, May 18 P-5 Email, May 18 P-6 Email, May 18 P-7 Email, May 18 P-8 Email, May 21 P-9 Re-evaluation meeting P-10 Email with proposed IEP and re-eval, May 21 P-11 Email, May 21 at 3:22 p.m. P-12 Email, June 1 P-13 Email, June 2 P-14 Email, June 1, 2021, at 10:13 a.m. P-15 Screen picture of Wave and audio recording, May 21 P-16 Signed IEP Consent Form P-17 R.A. e-mail

OAL DKT. NO. EDS 07849-21 27 P-18 Ms. Enny response to P-17 P-19 IEP 32 P-20 WISC-V computer generated report P-21 Order from Chancery Court P-22 Letter from pediatrician P-23 Judge’s ABA order, March 20, 2021 P-24 E-mail with attachments P-25 B.A. to Ms. Enny e-mail, July 28, 2021 P-26 Language arts score detail P-26 Language arts class score detail P-27 B.A. to Dr. Fradkin e-mail 44 45, March 29, 2021 P-28 B.A. to Morales e-mail, September 21, 2021 P-29 B.A. to LDTC e-mail, September 20, 2021 P-30 Order on Motion, March 12 P-31 Dr. Qureshi report For respondent R-1 Due Process Petitioner R-2 Answer R-3 Order on Custody, August 28, 2014 R-4 Education Evaluation, May 26, 2021 R-5 Psychological Evaluation, June 16, 2021 R-6 Speech-Language Evaluation, June 15, 2021 R-7 Occupational Therapy Assessment, June 14, 2021 R-8 Video recordings of Eligibility Determination Meetings, July 28, 2021 R-9 Reevaluation Eligibility Determination – Declassified, July 28, 2021 R-10 Email to R.A. and B.A. with 504 Accommodation Plan, September 15, 2021 For B.A. B.A.-1 Email from Enny to B.A. regarding meeting, May 17, 2021