A Capehart Scatchard Blog

Proactive Representation Part II: Proving a Case for Emergent Relief on Behalf of a School District

By on February 6, 2018 in Special Education/504 with 0 Comments

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

In last week’s segment, we discussed the importance of filing for due process and seeking emergent relief on behalf of a school district when the parents of a child receiving special education and related services take action, or refused to take action, in a way that prevents the district from fulfilling its legal obligation under the Individuals with Disabilities Education Act (“IDEA”) to provide the child with his or her right to a free and appropriate public education (“FAPE”). Today, we discuss the mechanics of doing so and highlight the necessary elements to obtain emergent relief from the court.

First, the school district should assess the facts and circumstances of its case against the legal standards under which its application for emergent relief will be reviewed. The special education regulations have adopted the familiar four-prong standard of Crowe v. De Gioia, 179 N.J. Super. 36 (1981). In short, emergent relief in a special education case will only be granted if the party seeking such relief establishes: (1) it will suffer irreparable harm if the requested relief is not granted; (2) the legal right underlying the claim is settled; (3) it has a likelihood of prevailing on the merits of the underlying claim; and (4) when the equities and interests of the parties are balanced, it will suffer greater harm than the other party if the requested relief is not granted.  See N.J.A.C. 6A:14-2.7(s) and N.J.A.C. 1:6A-12.1(e).

Of the four categories of matters for which emergent relief may be sought – disciplinary matters, graduation-related matters, stay-put related matters, or breaks in the delivery of services (see N.J.A.C. 6A:14-2.7(r)) – situations involving a break in the delivery of services are by far the most likely to give rise to an emergent relief request by a school district. In terms of mechanics, the request for emergent relief should always be accompanied by a due process petition. It must also be supported by an affidavit or notarized statement specifying the basis for emergent relief, which is usually prepared by counsel on behalf of the Director of Special Services, case manager, or another child study team member who possesses personal knowledge of the factual basis underlying the request.

The district should always frame its petition and supporting affidavit to present the facts with an eye toward meeting each of the four prongs of the Crowe standard. The petition must clearly explain how the break in the delivery of services resulted, or was unable to be remedied, due to the lack of parental consent and how irreparable harm results to the school district. When a parent refuses consent to initial evaluations or reevaluations that are necessary to make an eligibility determination or develop an appropriate IEP, the irreparable harm to the district almost always takes the form of potential liability that could result to the district by its being precluded from meeting is legal obligations. If authorization to proceed is not judicially granted, the timelines of the code will be missed and the district will be out of compliance, because it will be deprived of the ability to evaluate the child and obtain the information that would enable it to make an eligibility determination or draft an appropriate IEP that can provide FAPE.

In other situations, such as where a parent refuses to cooperate in releasing student records or participating in the intake process at potentially appropriate out-of-district placements, the irreparable harm to the district mirrors the resultant harm to the child from a break in the delivery of services, since the district has as parens patriae responsibility to ensure the educational well-being of the child. Apart from the child study team wanting the child to be appropriately educated, if the child misses significant portions of time without an appropriate school placement, the parent’s own refusal to explore appropriate schools could result in irreparable harm by creating liability for the district in the form of a compensatory education claim.

In arguing the second and third prongs, school districts will be aided by a robust and growing body of precedent granting emergent relief under these circumstances. In the case law, administrative law judges have adopted a practical approach, writing opinions that often utilize overlapping rationales in their discussion of the remaining three elements. The takeaway, however, is clear. When a special needs child is not receiving appropriate educational services due to lack of parental consent or cooperation, it is incumbent on the school district to move for affirmative relief now, rather than risk liability due to its inaction later.


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