Warren Hills Regional BOE v CD obo TD | Case 16969-19 | 2020-03-02

New Jersey Is An Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION SUMMARY DECISION OAL DKT. NO. EDS 16969-19 AGENCY DKT. NO. 2020 30865 WARREN HILLS REGIONAL BOARD OF EDUCATION, Petitioner, v. C.D. ON BEHALF OF T.D., Respondent. _________________________________ Esther M. Canty-Barnes, Esq., for petitioner (Rutgers Special Education Law Clinic, attorneys) Alison L. Kenny , Esq., for respondent (Schenck, Price, S mith & King , LL P, attorneys) Record Closed: March 2, 2020 Decided: March 2, 2020, BEFORE ELLEN S. BASS, Acting Director and Chief ALJ: STATEMENT OF THE CASE AND PROCEDURAL HISTORY In accordance with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415, the Warren Hills Board of Education (“the Board”), filed a petition for due

OAL DKT. NO. EDS 16969-19 2 process on November 4, 2019, which it seeks to deny C.D.’s request for an Independent Educational Evaluation (“IEE”) for her son, T.D. The matter was transmitted to the Office of Administrative Law (OAL) on December 4, 2019. The Board asserts that C.D. is not entitled to an Independent Evaluation at public expense because it has n ot conducted an initial evaluation of T.D ., leaving nothing with which C.D. can disagree, as required by N.J.A.C. 6A:14-2.5(c). During a t elephonic prehearing conference with counsel, they indicated that the pleadings raised only a legal dispute ; that the underlying facts were uncontroverted. Accordingly, the Board filed a Motion for Summary De cision on January 24, 2020. The parent f iled a Cross-motion for Summary Decision on February 7, 20 20. The Board replied on February 24, 2020, at which time the record closed.1 FINDINGS OF FACT I FIND as follows: T.D. is a sixteen-year-old resident of Was hington, New Jersey, a community that falls within the jurisdiction of the Warren Hills Regional School District (Warren Hills). In January 2019, T.D. transferred into the district as a ninth-grade student, having begun the 2018-2019 school year at Gregory the Great Academy, a private boarding school in Pennsylvania. By Marc h he had been referred to the Child Study Te am (CST ). A document dated March 13, 2019 outlines the outcome of the initial identification and evaluation planning meeting , and confirms that it was determined that no evaluation s were necessary and that “[T.D.] was not suspected o f having a disability” that affected his academic performance. The document lists a “description of the procedures, tests, records or reports and factors used in determining the action proposed or denied ,” and specifically notes that an evaluation completed the prior year by the Phillipsburg School District was re viewed and considered, together with other medical and educational 1 A second petition for due pro cess was filed by the Board on December 24, 2019, and transmitted to the OAL on February 3, 2020. The second peti tion challenged additional Independent Evaluations sought by the parent but was later withdrawn.

OAL DKT. NO. EDS 16969-19 3 records.2 The Phillipsburg evaluation had resul ted in a dete rmination that T .D. was ineligible for Special Education Services. The Warren Hills document also cites T.D.’s ongoing drug use as a reason not to formally evaluate. During the spring and summer of 2 019, T.D.’s behavioral and substance abuse issues had accelerated to t he point that he was placed by Order of the N ew Jersey Superior Court at the Bonnie B rae School, a residentia l treatment fac ility. T.D. was again referred to the CST by hi s mother in or about August 2019. A meeting with the Warren Hills team took place, and it w as again determined th at an evaluation was not warranted. An August 26, 2019 , document outlines the results of t his second evaluation planning meeting, noting that the determination not to evaluate was based on a review of notes from the March 201 9 meeting. In September 2019, via counsel, C.D. again asked that her son be evaluated. That request again was denied. Via letter dated October 14, 2 019, C.D., through co unsel, wrote requesting Independent Evaluations, to include psy chological, academic , and sp eech-language assessments. At the August evaluation planning meeting it had been suggested that the need for evalua tions would be reassessed a fter about two month s at Bonnie Brae. But the parties did not formally meet again to discuss T.D. until November 14, 2019, at which po int they gathered to address T.D. continued educational difficul ties, which included his refusal to cooperate with h ome instructors. Evaluation was again discussed, and again rejected as an option; the distr ict again cited T. D.’s “active drug use.” C.D. obtained Independent Evaluations at her own ex pense via Balaban and Associates in or a bout October and November 2019 . Psychological, educational and speech/language testing was completed. The psychological and educational evaluators both concluded that T.D. was eligible for Special Education Services. 2 During the 2017-2018 school year, T.D. attended a private parochial school in Phillipsburg. It was for this reason that, as a privately placed student, he was evaluated by the Phillipsburg team in the spring of 2018. See: N.J.A.C. 6A:14-6.1.

OAL DKT. NO. EDS 16969-19 4 LEGAL ANALYSIS AND CONCLUSIONS OF LAW N.J.A.C. 1:1-12.5(b) provides that summary decision sho uld be rende red “if the papers and disco very which have bee n filed, together with the affid avits, if any, sho w that there is n o genuine 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 jud gment 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 th at t here is no genui ne issue as to any material fa ct challenged and that the mo ving 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 requ ires the judge to consider wh ether the co mpetent evidential materials presented, when vi ewed in the light mo st favorable to the non -moving party, are suffi cient 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 long held that “if the opposing party . . . offers . . . only facts which are immaterial or of an insubstantial nature, a mere scintilla, ‘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 A m., 142 N.J. 520, 529 (1995) (citing Judson v. Peop les Bank & Trust Co., 17 N.J. 67, 75 (1954)). 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 determine whether there is a genuine issue for trial.” Brill, 142 N.J. at 540 ( citing Anderson v. Liberty Lob by, 477 U.S. 242, 249 (1986)). When the evidence “is so one-sided that one party must prevail as a matter of law,” th e trial court should not hesi tate to gran t summary judgment . Liberty Lobby, 477 U.S. at 252. I CONCLUDE that this ma tter is ripe for sum mary decision and that C.D. is entitled to dismissal of the petition, and to the IEE that she seeks, as a matter of law. The pare nt’s request for an Independent Evaluation sp rings f rom N. J.A.C. 6A: 14-2.5(c), which provides as follows:

OAL DKT. NO. EDS 16969-19 5 Upon completion o f an initial evaluation or r eevaluation, a parent may request an independent evaluation if there is disagreement with the initial evaluation or a reevaluation provided by a district board of educ ation. A parent shall be entitled to only on e independent ev aluation at public expense each time the dis trict board of education conducts an initial evaluation or reevaluatio n with which the parent disagrees. The request for an inde pendent evaluation shall specify the assessment(s) th e parent is see king as part of the independent evaluation request. [emphasis supplied] [See also: 34 CFR §300.502(b)(1)] Citing the plain language of the regulation, the Board asserts that it has no o bligation to provide an Independent Evaluation at public expense because it ha s not completed an initial evaluation. Hence, there can not be the disagreement that is the condition precedent to invoking this regulatory right. Case law is in accord. O ur Supreme Court has stated that an Independent Evaluation at public expense is intended to give parents “access to an expert who can ev aluate all the materials that the school district must make available, and who can give an independent opinion.” Schaffer v Weast, 546 U.S. 49, 60 -61 (2005). The courts have reco gnized that the Independent Evaluation is intended to fur nish parents with what they need to confirm or cont est the results of a school district evaluation. T.P. v Bryan Cnty. Sch. Dist., 792 F.3d 1284, 1293 (11th Cir. 2015). In interpreting the Federal counterpart to our regulation, the courts have confirmed t hat a p arent has a right to an Independent Evaluation only “if the parent disagrees with an evaluation obtained by th e public agency. ” Krista P. v. M anhattan Sch. Dist., 255 F. Supp. 2d 873, 889 (N.D. Ill. 2003). But C.D. urges that Warren Hill s’ review of d ata constitutes an evaluation , triggering her right to disag ree and seek a n IEE. I concur. T.D. was tested under the IDEA by the Phillipsburg CST, which determined that he was ineligible for Special Education Services. Warren Hills chose to d ecline to formally test and instead based its determination that there was no suspected disab ility on the Phillipsburg findings, among other dat a. Warren Hills thus “evaluated” T.D.3 And the parent thus has the 3 Had the Warr en Hills team declined to evaluate without benefit of any testing whatsoever I might have reached a different conclusion . But the CST ’s own documentation re flects reliance on recent public- school testing, which in my view is tantamount to accepting the testing completed by the Phillipsburg CST.

OAL DKT. NO. EDS 16969-19 6 right to disagr ee with the Warren Hills CST and seek an IEE in acc ordance with the regulatory scheme. See: Haddon Twp. Sch. Dist. v. N.J. Dept. of Educ., Docket No. A- 1626-14T4, (App. Div., 2016), where the court held that the term “evaluation” can mean a review of existing data. Indeed, the Haddon court points out that 34 C.F.R. §300.305 specifically conte mplates that an in itial evaluation or reevaluation include a review of existing evaluative data. And while the Warren Hills CST might complain that it did not have an opportunity to itself to formally test T.D., the uncontroverted facts reveal that it had repeated opportunities to do so.4 C.D. cites Letter to Zirke l, U.S. Department of Education, Office of Speci al Education Services (May 2, 2019). A code clarification does not carry the weight of law but can be instructive in interpreting regulatory language. The inquiry made in Letter to Zirkel was whether a “parent [has] the right to obtain an IE E at public expense if the child is evaluated under the IDEA and foun d not to be a child with a disability in need of Special Education and related services.” The U.S. Department of Education advised as follows: Yes. Under 34 C.F.R. §300.502(a), the pare nts of a child with a disability have the right under Part B of IDEA to obtain an IEE, subject to 34 C.F.R. §30 0.502(b) though (e). Under 34 C .F.R. §300.15, the term “evaluation” means the procedures used in accordance with 34 C.F.R. §§ 300.304 through 300 .311 to determine whether a child has a disability (emphasis in original), and the nature and extent of the Special Education and re lated serv ices that the child needs. Because the definition of evaluation included eligibility determinations under IDEA, w e believe an IEE can be obtained after an initial evaluation regardle ss of whether the child was found as a c hild with a disability, if the pa rent disagrees with the in itial evaluation obtained by the public agency, subject to certain con ditions. 34 C.F.R. §300.502(b)(1). The right to and IEE at public expense, therefore, w ould extend to pare nts who suspect their c hild might be a child with a disability and who disagree with the initial evaluation obtained by the public agency. 4 Warren Hills’ submission suggests that drug use made testing inappropriate. This argument is a nonstarter. If this was the reason not to test, the report of the Evaluation Planning meeting would have stated that t esting would be conducted once T.D . presented ev idence that he was c lean and sober. Instead, the report mentions the drug use, but lists classroom performance, doctor ’s reports and the Phillipsburg findings as the reason for declining to evaluate further.

OAL DKT. NO. EDS 16969-19 7 T.D. was evaluated under the ID EA by Warren Hills and found not to be a child with a disability. His mother accordingly is entitled by law both to disagree with that evaluation and to an IEE that might dispute the CST’s decision. The decision relied upon by the Board, M.S. v Hillsborough Twp. Pub. Sch. Dist., ___Fed. Appx. ____ (3rd Cir., November 20, 2019) is factually distinguishable. Th ere, the court denied a pare ntal request for reimbursement for an IEE where the board a nd parents agr eed to a reevaluation and “the parents then shifted course, requested an IEE at Hill sborough’s expense, and withdrew their consent f or Hillsborough’s planned reevaluation.” Id. Under the facts in Hillsborough, there was no District evaluation with which the pare nts could disagree, as they withdrew t heir cons ent for one. Here, the parent has repe atedly asked Warren Hil ls for an e valuation. And, Warren Hills has repeatedly declined to evaluate. Accordingly, I CONCLUDE that the parent is entitled to an IEE under N.J.A.C. 6A: 14-2.5(c) and 34 C.F.R. §300.502(a) . C.D. seeks re imbursement for the testing completed by Balaban and Asso ciates. N.J.A.C. 6A:14 -2.5(c)(2)(ii) requir es that an Independent Evaluation “be obtained from another public school district, educational services commission, jointure commission, a clinic or agency approved u nder N.J.A.C. 6A:14-5 ….” I have consulted the New Jersey Department of Educa tion website, and Balaban and Associates is an approved agency. In th e interest of e fficiency, and to avoid repetitive testing for T.D., I CONCLUDE that Warren Hills should reimburse the parent for the costs of these Independent Evaluations. ORDER Based upon the foregoing it is ORDERED that the parent’s Motion for Summary Decision is GRANTED, and petit ion of appeal is DISMISSED. The Board’s Motion is DENIED, and it is directed to reimburse the parent for the evaluations obtained via Balaban and Associates.

OAL DKT. NO. EDS 16969-19 8 This decision is final pursuan t to 20 U.S.C. § 1415( i)(1)(A) an d 34 C. F.R. § 300.514 (2018) and is a ppealable by filing a complaint and bringing a civil action 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 (2018). If the parent or adult student feels that this decision is not being fully implemented with respect to program or services, this concern sh ould be communicated in writing to the Director, O ffice of Specia l Education. March 2, 2020 _______ _________________________________ DATE ELLEN S. BASS, Acting Director and Chief ALJ Date Received at Agency March 2, 2020 _ Date Mailed to Parties: March 2, 2020 _ sej