A Capehart Scatchard Blog

Tag: administrative law

Second Circuit Holds FBAs Are Not “Evaluations” for Purposes of Special Ed Parents’ Independent Evaluation Requests

By on October 13, 2020 in Special Education/504 with 0 Comments

In a precedential opinion sure to make waves in the special education community, on September 17, 2020, in D.S. v. Trumbull Board of Education, 120 L.R.P. 133 (2d Cir. 2020), the Second Circuit Court of Appeals held that functional behavioral assessments (“FBAs”) of special education students conducted by a public school district are not “evaluations” capable of triggering a parent’s right to request an independent educational evaluation (“IEE”) from the district by an outside evaluator, at public expense.  The case puts front and center an issue of first impression that has rarely been addressed in the district courts of the […]

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Exhaustion of Administrative Remedies May Not Apply to Section 504 Claims

By on September 29, 2020 in Special Education/504 with 0 Comments

On September 23, 2020, the Ninth Circuit Court of Appeals ruled in McIntyre v. Eugene School District that the exhaustion of administrative remedies is not required when the claims do not allege a denial of a free appropriate public education (“FAPE”) as defined by the Individuals with Disabilities Education Act (“IDEA”). The case involved a student with attention deficit disorder who alleged that her school district violated Section 504 of the Rehabilitation Act and the Americans with Disabilities Act when it did not provide her with disability-related testing accommodations and failed to follow an emergency health protocol. In the complaint, […]

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N.J. District Court Affirms Dismissal of Parent’s Special Education Case as Time-Barred

By on February 25, 2020 in Special Education/504 with 0 Comments

In a case decided on February 11, 2020 by the United States District Court for the District of New Jersey, Camden Vicinage, the Eastampton School District (“District”) successfully dismissed a parent’s lawsuit brought under the Individuals with Disabilities Education Act (“IDEA”) on the basis that it was filed beyond the two-year statute of limitations. In McLean v. Eastampton School District, the parent of a special education student initiated a due process petition in August 2018 against the District alleging that an individualized education program (“IEP”) developed by the District in June 2016 failed to provide the student with a free […]

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N.J. Supreme Court Reverses; Refuses to Allow “Tyranny of Labels” to Compromise Analysis in Tenure Case

By on February 5, 2020 in Labor & Employment with 0 Comments

Last week, the New Jersey Supreme Court decided a teacher tenure case which it warned served as a cautionary tale that “demonstrates the ability of labels to cloud an analysis.”  Melnyk v. Bd. of Educ. of Delsea Reg’l High Sch. Dist., 241 N.J. 31 (2020).  The Delsea Regional School District (“District”) had employed the petitioner, Paula Melnyk, as a tenured special education teacher since 1991.  In 2002, the district began also employing Melnyk to work evenings as a teacher in its after-hours alternative program, in addition to her position as a special education teacher during the regular school day.  Melnyk […]

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Third Circuit Clarifies Law on Independent Evaluation Requests & Need for Disagreement with District Eval

By on December 16, 2019 in Special Education/504 with 0 Comments

Occasionally, school district child study teams (“CSTs”) are faced with special education parents who are resistant to allowing the CST to evaluate their child, yet demand independent evaluations from an outside evaluator at the school district’s expense.  In such circumstances, districts were often faced with a dilemma – either acquiesce to such demands, or file for due process themselves and incur legal fees to resist such requests, or deny the parent’s request without filing for due process and risk an Administrative Law Judge (“ALJ”) finding that the district committed a procedural violation.  This is because previous decisions of the Office […]

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Commissioner of Education Upholds Finding of HIB for Comments Related to Physical Strength

By on December 12, 2019 in Students with 0 Comments

In a case successfully defended by Sanu Dev, Esq., the Hainesport Township Board of Education’s (“Board”) determination of harassment, intimidation, and bullying (“HIB”) was upheld by the New Jersey Commissioner of Education (“Commissioner”) on June 19, 2019. In the case captioned M.S. and N.S. o/b/o J.S. v. Hainesport Township Board of Education, the parents of J.S. appealed the Board’s decision finding that J.S. violated the Anti-Bullying Bill of Rights Act (“ABBRA”) and committed an act of HIB when J.S. slammed another student’s Chromebook, pulled on his earbuds, called him “weakling,” and commented on the student’s athletic ability, using the phrase, […]

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Appellate Division Rules Chapter 78 Does Not Preempt Terms of CNA

The Ridgefield Park Education Association (“Association”) filed an appeal with the New Jersey Appellate Division challenging a ruling by the Public Employment Relations Commission (“PERC”) in favor of the Ridgefield Park Board of Education (“Board”), which held that Chapter 78 preempted the terms of the parties’ collective negotiations agreement (“CNA”) for the period July 1, 2014 to June 30, 2018. On May 3, 2019, the Appellate Division reversed PERC’s determination in In the Matter of Ridgefield Park Board of Education and Ridgefield Park Education Association and remanded the matter to PERC to implement a remedial mechanism to refund the excess […]

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OSEP Clarifies: Parental Consent Not Required to Conduct Post-Secondary Transition Assessments if Child Study Team not Reevaluating

By on April 22, 2019 in Special Education/504 with 0 Comments

By: Cameron R. Morgan, Esq. and Nicole Crincoli, Law Clerk The Individuals with Disabilities Education Act (“IDEA”) requires informed parental consent to be provided prior to a child study team performing any number of different actions in the course of the special education process.  Whether a school district needs to obtain written parental consent prior to administering postsecondary transition assessments had been a question of some debate.  In a recent guidance letter from the Office of Special Education Programs (“OSEP”), Letter to Olex, 119 L.R.P. 8445, 74 I.D.E.L.R. 22 (Feb. 22, 2019), OSEP indicated that individualized education program (“IEP”) teams generally […]

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Special Education Settlement Subject to 6-Year Statute of Limitations

When boards of education resolve disputes with parents of special education students, they often enter into settlement agreements with the parents which are approved by an Administrative Law Judge (“ALJ”) of the New Jersey Office of Administrative Law (“OAL”). On February 27, 2019, the New Jersey Appellate Division in L.A. v. South Orange-Maplewood Board of Education issued a decision affirming that parties to a settlement agreement approved by the OAL are subject to a six-year statute of limitations to enforce that agreement. In 2000, the parent of a special education student initiated litigation against the South Orange-Maplewood Board of Education (“Board”) seeking reimbursement […]

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Contract Rescission Does Not Avoid Need for Public Notice and Hearing

By on March 15, 2019 in Labor & Employment with 0 Comments

By: Robert A. Muccilli, Esq. Editor: Sanmathi (Sanu) Dev, Esq. Statutes are to be read sensibly rather than literally. This was the message sent by the New Jersey Appellate Division on March 14, 2019 in Wall Township Education Association v. Board of Education of the Wall Township School District when it reversed the Commissioner of Education’s decision and held that a superintendent and school district may not avoid the requirements for public comment and public hearing under N.J.S.A. 18A:11-11 simply by rescinding an existing superintendent employment contract. The Superintendent had a contract which was to expire on June 30, 2019. After […]

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