RR and LR obo BR v West Orange Town BOE | Case 05003-21 | 2021-06-16

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION EMERGENT RELIEF OAL DKT. NO. EDS 05003-21 AGY REF NO. 2021-32939 R.R. AND L.R. ON BEHALF OF B.R., Petitioner v. WEST ORANGE TOWN BOARD OF EDUCATION, Respondent _________________________________________ Staci J. Greenwald , Esq. for Petitioners (Sassan, Greenwald & Wesler , attorneys) Marc G. Mucciolo, Esq., for Respondent (Methfessel & Werbel, P.C., attorneys) Record Closed: June 15, 2021 Decided: June 16, 2021 BEFORE THOMAS R. BETANCOURT, ALJ:

OAL DKT. NO. EDS 05003-21 - 2 - STATEMENT OF THE CASE AND PROCEDURAL HISTORY Petitioner filed a Request for Emergent Relief with the Office of Special Education Policy and Procedure (OSEP) in the New Jersey Department of Educ ation (DOE). The contested matter was transferred to the Office of Administrative Law (OAL), pursuant to N.J.A.C. 1:6A-12.1, where it was filed on June 11, 2021 , to be heard on an emergent basis. Petitioner seeks a determination on behalf of the student th at the Individualized Education Program (IEP), dated July 24, 2020, developed at t he student’s prior district, is the stay put placement and program. Oral argument on the request for emergent relief was heard on June 15, 2021. FACTUAL BACKGROUND Petitioners reside in New York Cit y. B.R. is enrolled at the Winston Pr eparatory School in New York , N.Y., in accordance with an IEP dated July 24, 2020. Petit ioners will be relocating to West Orange in June 2021. B.R. becom es the responsibility of the Respondent District on July 1, 2021. B.R. is a thirteen-year-old student diagnosed with Autism Spectrum Disorder and Executive Functioning Disorders. B.R. attended the Parkside School in New York, NY prior to attending Winston. Petitioners notified the Respondent District in March 2021 th at they would be relocating to West Orange. They provided the student ’s records. Permission was granted for the District to conduct Speech and Occupational therapy evaluations.

OAL DKT. NO. EDS 05003-21 - 3 - An initial IEP meeting was held on June 4, 2021. The Child Study Team (CST) determined that B.R. was eligible for special education and related services under the category of Other Health Impaired (OHI). The District offered an IEP with a program and placement in the District’s middle school. Petitioners through their attorney, sent a letter, dated June 7, 2021, advising that the proposed IEP was substantially different from the IEP developed in New York City. The letter went on to request an out of district placement at Winston Preparatory School until an observation of the District’s proposed program could occur in September of this year. The District responded the same date, through counsel, that it believed the proposed IEP was appropriate for B.R. and was comparable to his current IEP. Petitioners filed the within emergent application seeking stay put at Winston Preparatory School pending the outcome of the underlying due process petition. LEGAL ANALYSIS AND CONCLUSION Initially, it must be determined if petitioner is entitled to request emergent relief. A party may only request emergent relief for the following reasons, in accordance with N.J.A.C. 6A:14-2.7(r)1: i. Issues involving a break in the delivery of services; ii. Issues involving disciplinary action, including manifestation de terminations and determinations of interim alternate education settings; iii. Issues concerning placement pending outcome of due process proceedings; and iv. Issues involving graduation or participation in graduation ceremonies. In the instant matter, Petitioners are raising an issue as to placement pending the

OAL DKT. NO. EDS 05003-21 - 4 - outcome of a due process hearing. They are entitled to make this emergent application. As this matter revolves around stay put , the elements of C rowe v. DeGioia , 90 N.J. 126, 132- 34 (1982) (enumerating th e factors later codified at N.J.A.C. 6A:14.2- 7(s)1) need not be analyzed. Specifically, petitioners are seeking stay put and maintaining that the IEP July 24, 2020 is the stay put. hat IEP was developed in the student’s prior district, the New York City Board of Education. Petitioners are moving to the Respondent District, which will assume responsibility for the student’s education on July 1, 2021. As a special corollary of injunctive relief under the IDEA, one of that law’s important procedural safe guards is its “‘pendent placement’ or ‘stay put’ provision.” Susquenita Sch. Di’s v. Raelee S., 96 F.3d 78 , 82 (3d Cir. 1996). The IDEA provides: During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardian, be placed in the public school program until all such proceedings have been completed. [ 20 U.S.C. §1415(e)(3)(A)] Consistent therewith, state regulations provide: Pending the outcome of a due process hearing, including an expedited due process hearing, or any administrative or judicial proceeding, no change shall be made to the student’s classification, program or placement unless both parties agree, or emergency relief as part of a request for a due process hearing is granted by the Office of Administrative Law according to (m) above or as provided in 20 U.S.C. §1415(k)4 as amended and supplemented.

OAL DKT. NO. EDS 05003-21 - 5 - [N.J.A.C. 6A:14-2.7] However, in this matter , the Petitio ners have relocated from out of state to New Jersey. Th ey seek a s stay put the previous placement at t he Winston Preparatory School in New Y ork City, with t hat placement being made at the Winston Preparatory School located in Whippany, New Jersey. N.J.A.C. 6A:14-1.1(g) states in pertinent part: (g)When a student with a disability transfers from one New Jersey school district to another, or from an out-of-State school district to a New Jersey school district, the child study team of the school district into which the student has transferred shall conduct an immediate review of the evaluation information and the IEP and, without delay, in consultation with the student's parents, provide a program comparable to that set forth in the student's current IEP until a new IEP is implemented, as follows: 2. If the student transfers from an out-of-State school district, the appropriate district board of education staff shall conduct any assessments determined necessary and, within 30 days of the date the student enrolls in the school district, develop and implement a new IEP for the student. 3. The appropriate district board of education staff shall take reasonable steps to promptly obtain the student's records, including the current IEP and supporting documentation, from the previous school district in accordance with N.J.A.C. 6A:32. The school district in which the student was previously enrolled shall take reasonable steps to promptly respond to all requests for records of students transferring from one district board of education to another district board of education. The only issue herein is whether or not the proposed IEP offered by Respondent is comparable to the current IEP being implemented where B.R. attends the Winston Preparatory School. At Winston, B.R. attends classes with eight other students, all of which are classified. The proposed IEP calls for classes of approximately twenty students. B.R.

OAL DKT. NO. EDS 05003-21 - 6 - would have a general education teacher, a special education teacher and a 1:1 aide. Further, Winston has approximately 236 students. The District school proposed for B.R. would approximately 500 students. Petitioners argue that the two IEPs are not comparable and provide different settings. Respondent argues the contrary, that what is proposed is comparable to what B.R. receives presently. While both IEPs offer similar types of programs, the actual setting for the delivery of those programs are substantially different and not comparable. As Winston has a campus in Whippany, New Jersey offering the same program B.R. currently receives at the Winston school in New York City, it would be more prudent to maintain that setting than to change it pending the outcome of the underlying due process petition. Based upon the foregoing I CONCLUDE that petitioner’s request for e mergent relief should be GRANTED. ORDER It is hereby ORDERED that petitioner’s request for emergent relief is GRANTED; and, It is further ORDERED that stay put pending the outcome of the due process petition shall be a t the Winston Preparator y School located in Whippany, New Jers ey; and It is further ORDERED that Respondent shall be responsible for payment of tuition costs and transportation costs for the same.

OAL DKT. NO. EDS 05003-21 - 7 - This decision on application for emergency relief shall re main in effect until th e issuance of the decision on the merits in this matter. The hearing having been requested by the parents, this matter is hereby returned to the Department of Educatio n for a local resolution session, pursuant to 20 U.S.C.A. § 1415 (f)(1)(B)(i). If the p arent or adult student feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, Office of Special Education Programs. June 16, 2021 DATE THOMAS R. BETANCOURT, ALJ Date Received at Agency ________________________________ Date Mailed to Parties: db

OAL DKT. NO. EDS 05003-21 - 8 - APPENDIX List of Moving Papers For Petitioners: Request for emergent relief with brief and Exhibits: A. IEP dated July 24, 2020 B. Neuropsychological Evaluation by Melissa Fiorinos-Grafman, Ph.D. C. IEP dated June 4, 2021 Certification of Lit Raz, parent For Respondent: Brief in opposition to request for emergent relief Certification of Yelena Rushkoff, Psychologist/Case Manager