West Windsor Plainsboro Regional BOE v AC obo ZP | Case 00659-22 | 2022-02-01

New Jersey is an Equal Opportunity Employer State of New Jersey OFFICE OF ADMINISTRATIVE LAW FINAL DECISION ON EMERGENT RELIEF OAL DKT. NO. EDS 00659-22 AGENCY DKT. NO. 2022 33827 WEST WINDSOR-PLAINSBORO BOARD OF EDUCATION, Petitioner, v. A.C. o/b/o Z.P., Respondent. ____________________________________ Marc G. Mucciolo, Esq. for petitioner (Methfessel & Werbel, attorneys) Denise Dwyer , Esq., for respondent (Law Office of Denise Lanchantin Dwyer, LLC, attorneys) Record Closed: January 31, 2022 Decided: February 1, 2022 BEFORE KIM C. BELIN, ALJ: STATEMENT OF THE CASE By a request for emergent relief , petitioner West Windsor -Plainsboro Board of Education (Board or petitioner) seeks a change in placement to home instruction pending

OAL DKT. NO. EDS 00659-22 2 an out-of-district (OOD) placement for Z.P. Respondent A.C., mother of Z.P. , opposes this request on the basis that home instruction is not the least restrictive environment. PROCEDURAL HISTORY This matter was filed at the Office of Administrative Law (OAL) on January 26, 2022, for an emergent relief hearing and a final determination in accordance with 20 U.S.C. §1415 et seq., and 34 C.F.R. §§300.500 to 300.587, and the Director of the Office of Administrative Law assigned me to hear the case pursuant to N.J.S.A. 52:14F-5. Oral argument was held on January 31, 2022, and the record closed on that date. FACTUAL DISCUSSION AND FINDINGS In addition to the parties’ arguments, I have considered the documents submitted before and at the oral argument. Z.P. is a kindergarten student residing in boundaries of the West Windsor -Plainsboro school district . He was deemed eligi ble for special education and related services with a classification of autism . Z.P.’s most current placement for the 20 21-22 school year was at the Dutch Neck Elementary School. However, he was suspended for three days from January 24, 2022 through January 2 6, 2022, for hitting his teacher with a closed fist in the abdomen, right arm, and kicking her in the leg in violation of the code of student conduct . On January 27, 2022, t he Board unilaterally extended Z.P.’s suspension pending the outcome of the instant emergent relief petiti on. Counsel for the respondent requested a conference call with the undersigned on January 27, 2022, and during the conference call the undersigned initially agreed with extending the suspension because of the petitioner’s safety concerns . However, on January 28, 2022, the undersigned convened another conference call with the parties and ordered that Z.P. be returned to school on January 31, 2022 , because Z.P. had completed the mandated suspension. In its request for emergent relief , petitioner asserts that Z.P.’s escalating maladaptive behavior poses a safety risk to other students and staff and the Board does not have the proper supports to address his behavioral needs. As a remedy, petitioner seeks immediate placement on home instruction pending an OOD placement for Z.P.

OAL DKT. NO. EDS 00659-22 3 Petitioner forecasts that the home instruction period will be short-term because the parties have identified several potential out of district placements and Z.P. was approved by the Y.A.L.E. School. Conversely, respondent asserts that petitioner failed to conduct a manifestation determination prior to imposing the short-term suspension in violation of the Individuals with Disabilities Act (IDEA), 20 U.S.C. §1415 et seq. , and violated N.J.S.A. 18A:37 -2a which prohibits school districts from suspending kindergarteners except for “conduct that is of a violent or sexual nature that engenders others.” Respondent contends that “violent” is not defined by that statute. However, in the relevant federal regulations, school personnel are permitted to remove a student with a disability to an interim alternative educational setting for not more than forty-five days if the child has “inflicted serious bodily harm upon another person while in school.” 34 C.F.R. §300.530(g)(3). “Serious bodily injury” is defined as bodily injury that involves: “ a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, or gan, or mental faculty.” 18 U.S.C. §136 5(h)(3). Respondent contends that her son’s behavior did not fit that definition. In addition, respondent asserts that the petitioner failed to provide notice of Z.P.’s suspension by the end of the school day in violation of N.J.A.C. 6A: 16-7.2(a)3, and failed to notify the respondent of her due process rights in violation of N.J.A.C. 6A: 16-7.2(a)3iv. As a remedy, the respondent wants Z.P. immediately returned to school, a manifestation determination assessment to determine if the complained of conduct was a manifestation of his disabilit y, the petitioner to comply with the IDEA’s procedural requirements providing notice of the suspension and her due process rights , and for the petitioner to retain the respondent’s private behavioral expert, Dr. Lindsay Hilsen, to “assist in refining and implementing a behavioral intervention plan for Z.P. immediately and include it in his individualized education plan (“IEP”).”

OAL DKT. NO. EDS 00659-22 4 LEGAL ANALYSIS AND CONCLUSION The standards to be met by the moving party in an application for emergent relief in a matter concerning a special needs child are set forth in N.J.A.C. 1:6A-12.1(e) and N.J.A.C. 6A-14-2.7(s)1. They provide that a judge may order emergency relief if the judge determines 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. It is important to note that all four prongs must be satisfied. Crowe v. DeGoia , 90 N.J. 126, 132-34 (1982). Addressing the first prong of the test, petitioner contends irreparable harm exists because Z.P.’s behavioral issues present a safety risk to school district staff and students. Petitioner asserts it is “ready, willing and able” to provide home instruction for Z.P. until a suitable out of district placement is found. The IDEA mandates that students with disabilities are to be educated in the “least restrictive environment. ” See, 20 U.S.C. §1412(a). “The least restrictive environment is the one that, to the greatest extent possible, satisfactorily educates disables children together with children who are not disabled, in the same school the disabled child would attend if the child were not disabled.” Carlisle Area Sch. v. Scott P. et al., 62 F.3d 520, 535 (3d Cir. 1995), cert. den. sub. nom,. Scott P. v. Carlisle Area Sch. Dist. , 517 U.S. 1135, 116 S. Ct. 1419, 134 L.Ed.2d 544 (1996).

OAL DKT. NO. EDS 00659-22 5 To support its contention that home instruction is a viable option, the petitioner here relies upon A.D. o/b/o I.D. v. Cherry Hill Bd. of Ed., OAL Dkt. No. EDS 10009 -09 (September 25, 2009), and Collingswood Boro Bd. of Ed. v. A.C. o/b/o D.F., OAL Dkt. No. EDS 10586-09 (April 1, 2010). In these decisions, the Administrative Law Judges upheld home instruction pending an OOD. However, both decisions are distinguishable. In A.D., the petitioner was a high school student, not an elementary student like Z.P. In addition, I recognize my colleague determined there was no irreparable harm because the school district was providing home instruction, however, I am not persuaded that home instruction fits the definition of least restrictive environment. In Collingswood, the injury inflicted by the student, who was in first grade, required medical attention, which is not present in the instant matter. The harm of being excluded from his peers is greater to Z.P. than the potential harm of having him in school especially since the behavioral intervention plan (BIP) developed by the Child Study Team after repeated requests from the respondent, has not yet been implemented. Moreover, respondent stated that during the intake meeting held remotely with the Y.A.L.E. school, the petitioner’s Board Certified Behavior Analyst (BCBA) and Z.P.’s case manager stated that “Z.P.’s behavior had improved significantly to the point where she was only on call rahtan than providing 1:1 support.”1 Accordingly, I CONCLUDE that the petitioner has not satisfied the first prong. As to the second prong, petitioner asserts that it has a duty to maintain a safe school environment for all its students and it cannot do so if Z.P. remains in the school. However, as stated above, the petitioner has not exhausted its options to address Z.P.’s behavioral needs. 20 U.S.C. §1412(a)5(A) provides “separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes wi th the use of supplementary aids and services cannot be achieved satisfactorily.” Petitioner has not used all the supplementary aids and services at its disposal. Thus, while the petitioner may yet be able to prove that its legal right underlying its claim is settled in the underlying due process matter, it has not done so within the four corners of this emergent application. 1 A.C.’s certification, dated January 30, 2022, ¶48.

OAL DKT. NO. EDS 00659-22 6 The third prong of the test for emergent relief requires that petitioner has a likelihood of success on the merits. Petitioner relies upon South Brunswick Bd. of Ed. v. W.T. o/b/o W.T., OAL Dkt. No. EDS 633 -02, 2002 N.J. AGEN LEXIS 45, ( February 26, 2002), in which the Administrative Law Judge upheld the school district’s emergent request to release the pupil’s records to out of district placement and place the student on home instruction because the student was disruptive. This case, however, is also inapposite as it involved a middle school student who was being home schooled by a parent and not r eceiving any instruction from the school district. It may well be that as the facts in this matter are developed, petitioner may prove that Z.P.’s needs are best met in an OOD placement. However, the facts presented to date do not definitively show that such is the case and thus, petitioner has not met the third prong of the test. The final requirement for relief entails a balancing of the interests between the parties. Petitioner asserts that no harm will come to Z.P. if the relief requested in granted. It is undisputed that Z.P. has engaged in disruptive behavior ; however, the injury did not require medical attention or fit within the definition of serious bodily injury. K eeping him at home, the most restrictive environment, until a suitable placement is found will indeed cause him harm in the loss of opportunities to interact with his non-disabled peers which is the goal of providing a free and appropriate education. The respondent contends that if the petitioner had developed and implemented the BIP sooner, Z.P.’s behaviors may not have escalated. This may be true. Nevertheless, there is still opportunity to assess whether the BIP or other intervention effectively descalates and reduces the maladaptive behavior. Thus, I CONCLUDE petitioner has not yet shown that on balance it will suffer the greater harm than the respondent. Having considered the parties’ arguments and submissions, I CONCLUDE petitioner has failed to meet all four prongs of the standard for entitlement to emergency relief. As set forth above, all four pron gs must be met in order to grant the motion for emergent relief. Fo r the foregoing reasons, I CONCLUDE that the petitioner’s request for emergent relief is DENIED. I also at this time strongly urge the parties to collaborate together to the fullest extent possible in the best interests of Z.P. so he can overcome his behavioral difficulties and also obtain the best education possible consistent with the law.

OAL DKT. NO. EDS 00659-22 7 DECISION AND ORDER For the reasons stated above, I hereby ORDER that petitioners’ application for emergent relief is DENIED. This decision on application for emergency relief is final pursuant to 20 U.S.C. § 1415(i)(1)(A) and is appealable by filing a complaint and bringi ng 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). If the parent or adult student feels that this decision is not being fully implemented with respect to p rogram or services, this concern should be communicated in writing to the Director, Office of Special Education Programs. February 1, 2022 __________________________ DATE KIM C. BELIN, ALJ Date Received at Agency ______________ Date Mailed to Parties: KCB/lam

OAL DKT. NO. EDS 00659-22 8 APPENDIX WITNESSES For petitioners: None For respondent: None EXHIBITS For petitioner: Motion and Letter Brief for Emergency Relief with exhibits For respondent: Memorandum of Law in Opposition to Motion for Order of Emergent Relief with exhibits