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M.K. v. Roselle Park Board of Education

October 31, 2006


The opinion of the court was delivered by: Greenaway, Jr., U.S.D.J.



This matter comes before this Court on (1) the motion of Plaintiff M.K., on her behalf and on behalf of her minor son, R.K., for a preliminary injunction; and (2) the motion of Defendant Roselle Park Board of Education (the "Board" or "Defendant") to dissolve the temporary restraining order entered on September 26, 2006 (the "TRO"), by the Honorable Dickinson R. Debevoise, United States District Judge.*fn1 The TRO, which was entered on the motion of Plaintiff, pursuant to the Individuals with Disabilities Education Act ("IDEA"), ordered, inter alia, that Defendant (1) continue the placement of R.K. at Children's Specialized Hospital ("CSH") in Fanwood, New Jersey; (2) be restrained from commencing any action against M.K. for asserting her rights under the IDEA; and (3) be temporarily restrained from placing R.K. at its in-district, public school placement with the services of a paraprofessional.

(Docket Entry No. 2.) Additionally, Judge Debevoise ordered that Defendant show cause on October 3, 2006, why it should not be preliminarily enjoined from placing R.K. in its in-district program, and compelled to place him in the Children's Center of Monmouth County in Neptune ("Monmouth"), or an out-of-district private placement that is similar to the Children's Specialized Hospital with an appropriate one-on-one Registered Nurse ("RN") and related services. On September 27, 2006, Defendants submitted their request for dissolution of the TRO.

On September 29, 2006, this matter was transferred from Judge Debevoise to this Court. After this Court received the parties' initial briefing, and held a series of status conferences with the parties to address various deficiencies in their pleadings, this Court ordered that the parties submit supplemental submissions so that it could properly adjudicate the issues before it. This Court set a hearing on Plaintiff's motion for a preliminary injunction and Defendant's motion to dissolve the TRO for October 18, 2006. For the following reasons, based on its review of the parties' written submissions and oral argument, this Court grants Plaintiff's motion for a preliminary injunction, and grants Defendant's motion to dissolve the TRO.


A. R.K.'s Medical Condition

R.K. is an eight year old boy who has been enrolled as a student in the Roselle Park School District since March 2004. He is eligible for special education and related services under the classification of "Multiply Disabled." (Complaint ("Compl."), ¶ 3; Brief in Opposition To Plaintiff's Request For Injunctive Relief And In Support Of The District's Request To Vacate Temporary Restraints ("Def.'s Br.") at 1.) R.K. allegedly suffers from various medical problems involving his heart, lungs, liver and immune system. (Compl., ¶ 3.) Additionally, R.K. suffers cognitive impairment, communication impairment, and other health impairments. (Def.'s Br. at 1.) Plaintiff M.K. is the mother of R.K. (Compl., ¶ 4.)

Plaintiff alleges that R.K. was classified as pre-school disabled in 2001, and was unable to attend school until he was placed at CSH, a private school for the handicapped. (Id., ¶ 6.) She further contends that R.K.'s condition, which limits him to the receipt of medications and nourishment through a nasal gastric tube, requires that he be provided with one-on-one supervision by an RN during school and transportation on a daily basis. (Id., ¶ 7.) Plaintiff also asserts that R.K. has been authorized by Medicaid to receive twelve hours per day of private duty nursing services, seven days a week. (Id.)

R.K.'s most recent physical therapy evaluation, conducted on July 21, 2006, reflects that R.K. "can move from sitting to quadruped to kneeling to half-kneel with support to standing." (Plaintiffs' Brief & Supplemental Evidence In Support Of Stay-Put Injunction ("Pl.'s Supp. Br."), Exh. 5, Affidavit Of Mary Kozlik ("Kolzlik Aff."), Exh. A, July 2006 Physical Therapy Report ("P.T. Rept.").) "He can kneel walk independently a few feet." (Id.) R.K. is also "limited now to a small 4-step staircase with 2 rails for support," which he "can ascend and descend with supervision to occasional contact guard." (Id.)

B. Treatment Of R.K. By The Roselle Park School District

In March 2004, M.K. moved with R.K. into the Roselle Park School District (the "District"). (Compl., ¶ 8.) In June 2004, an Individualized Education Program ("IEP") was developed for R.K., which included: (1) a one-on-one nurse; (2) transportation; (3) placement in a self-contained placement in an approved private school, outside of the district; (4) an extended school year program ("ESY"); and (5) occupational therapy, physical therapy, and speech and language therapy. (Id., ¶ 9.) As part of his IEP, R.K. was provided nursing services through a private agency while he was in school at CSH. (Id.)

In March 2005, the District Director of Special Services, Tracey Maccia, and a case manager, observed R.K. at CSH, and based on that observation, decided to transfer R.K. from CSH to an in-district placement -- the Multiply Disabled Program at Aldene School ("in-district program"). (Id., ¶¶ 10-12.) The District advised CSH that R.K. would be transferred to the in-district program effective July 5, 2005. (Id., ¶ 12.) Defendant contends that its in-district program was modeled after the CSH program. (Certification Of Tracey Maccia ("Maccia Cert."), ¶ 2.)

On July 5, 2005, the first day of the ESY, M.K. learned that the District had hired a Licensed Practical Nurse ("LPN") in lieu of an RN to attend to R.K. at CSH, and to receive training from the RN who had been treating R.K. (Id., ¶ 14.) Plaintiff alleges that several letters had been sent to the District by R.K.'s physician, advising the District that R.K. required the services of a RN. (Id.) M.K. objected to the use of the LPN, and on July 11, 2006, provided another letter from R.K.'s doctor reiterating R.K.'s need for RN services. (Id., ¶¶ 15-16.)

The parties agreed to meet in September 2005 to conduct a re-evaluation planning meeting, at which the District would review and/or revise R.K.'s IEP. (Id., ¶ 18.) On September 20, 2005, a re-evaluation meeting was held at CSH, at which Dr. Gozo, R.K.'s primary pediatrician, reiterated that R.K. required the services of an RN, and the District agreed to conduct a re-evaluation. (Id., ¶ 19.) After the re-evaluatuon, although an IEP was developed to allow R.K. to remain at CSH for the remainder of the 2005-2006 academic year, the District refused to include a provision for one-on-one RN services in R.K.'s IEP. (Id., ¶ 20.)

C. Administrative Complaints And Adjudication

On October 20, 2005, one month into the 2005-2006 school year, M.K. filed a due process petition with the District, requesting that it modify R.K.'s 2005-2006 IEP to provide oneon-one RN services for R.K., and incorporate nursing objectives and protocols. (Id., ¶ 21; Plaintiffs' Brief in Support Of Stay-Put Injunction ("Pl.'s Br.") at 2.) Plaintiff contends that this due process complaint remains unresolved. (Pl.'s Br. at 2.)

On February 9, 2006, M.K. filed for emergent relief to compel the District to (1) permit M.K. to arrange, through independent nursing agencies, for one-on-one RN services for R.K. during school and transportation; and (2) provide R.K.'s student records to prospective out-of-district placements. (Compl., ¶ 23.) On May 15, 2006, an emergency relief hearing was convened before Administrative Law Judge Caridad Rigo (the ALJ). The ALJ found the issues presented by M.K.'s petition non-emergent because, as demonstrated by the testimony of Medicaid representative Steven Tunney, Plaintiff was receiving, and would continue to receive, one-on-one RN services through Medicaid. (Certification Of Plaintiffs' Attorney ("Pl.'s Cert."), Exh. 3, Transcript of May 15, 2006 Proceedings; Defendant's Exhibit List ("Def.'s Exhs."), Exh. E, Transcript of May 15, 2006 Proceedings.)

On May 31, 2006, the parties convened again before the ALJ to hear testimony on behalf of the Plaintiff regarding Plaintiff's contention that R.K. required one-on-one nursing care. (Pl.'s Cert., Exh. 2, Transcript of May 31, 2006 Proceedings.) Following this hearing date, on June 15, 2006, the District filed a motion to dismiss on the ground that Plaintiff's due process petition was limited to the 2005-2006 school year. The ALJ denied the District's motion on July 18, 2006, on the ground that the nursing issue was "capable of repetition, yet evading review." (Def.'s Br. at 4.)

On August 3, 2006, the parties convened an IEP meeting, during which the parties were to discuss R.K.'s placement for the 2006-2007 school year. R.K. had attended CSH since 2001, but was aging out of the program because CSH is not state approved beyond the age of seven; R.K. was turning eight. (Maccia Cert., ¶¶ 10-11.) It is undisputed that both parties had been aware of this fact throughout the pending litigation, and knew that R.K.'s last day at CSH was August 18, 2006. (Def.'s Br. at 4.) At the August 3 meeting, Defendant proposed an IEP for the 2006-2007 school year, which placed R.K. in the in-district program. (Def.'s Br. at 4.)

Also, on August 3, 2006, M.K. filed a second due process petition regarding R.K.'s placement and IEP for the 2006-2007 school year. (Compl., ¶ 27; Def.'s Br. at 4.) On August 14, 2006, Plaintiff filed a motion requesting that her August 3, 2006 due process petition be converted into a petition for emergency relief. (Def.'s Exhs., Exh. B, Aug. 14, 2006 Request for Emergency Relief.) The emergency relief sought by Plaintiff included the placement of R.K. at Monmouth pending resolution of the instant dispute (Id.) Specifically, M.K. seeks to have R.K. placed at Monmouth, a placement which would require R.K. to ride on a school bus for over one hour each way. (Def.'s Br. at 1; Maccia Cert., ¶ 7.)

After receiving briefing from both parties, and hearing oral argument on Plaintiff's request for emergency relief, on September 14, 2006, the ALJ rejected Plaintiff's argument that an "out-of-district" placement for R.K. was required under the IDEIA's "stay-put" provision, ruled that the "stay put" placement for R.K. pending the outcome of Plaintiff's due process petition was to be the in-district program. (Def.'s Exhs., Exh. A, September 14, 2006, Order on Emergent Relief.)

On September 15, 2006, M.K. requested that CSH allow R.K. to remain at CSH pending an appeal for injunctive relief to this Court. CSH agreed to permit R.K. to remain in its program until October 13, 2006. (Compl., ¶ 29; Pl.'s Cert., Exh. 4, Letter Regarding Keeping R.K. at CSH.) Then, on September 20, 2006, Plaintiff filed a motion for a preliminary injunction and a proposed Order to Show Cause with Temporary Restraints, seeking injunctive relief in response to the ALJ's September 14, 2006 order.

D. The Facilities At Issue

To aid this Court in its determination of where R.K. should be placed pending the outcome of the due process petition before the ALJ, the parties have proffered evidence of the physical plant and services offered at five separate facilities, which purport to serve multiply disabled children. The nature of these facilities is as follows:

1. CSH

CSH, the school R.K. currently attends, is located in Fanwood, New Jersey, 6.43 miles (or approximately 15 minutes) from R.K.'s home. (Pl.'s Supp. Br., Exh. 1, Affidavits Of Pamela Venckus ("Venckus Affs."), Certification, ¶ 1; Supplemental Certification Of Tracey Maccia ("Maccia Supp. Cert."), ¶¶ 4, 6.) Certification Of Isabel Machado, Esq. ("Machado Cert."), Exh B, Chart.) The school, which is classified as servicing multiply disabled children, provides services for children who are up to eight years old, and has a 2:1 student to staff ratio. (Machado Cert., Exh. B, Chart; Maccia Supp. Cert, ¶ 5.)

CSH employs "full-time related service providers, including speech therapists, occupational therapists, physical therapists, and multiple registered nurses." (Venckus Affs., Certification, ¶ 9.) These individuals provide their services in several separate rooms within the school; different therapies (e.g., speech, language, and physical therapy) are never simultaneously provided within a single room. (Id., ¶ 9.) At CSH, speech therapy includes oral-motor and feeding programs, as well as language skills development. (Id., ¶ 10.)

The entrance to R.K.'s classroom at CSH is located on the ground level, and there are elevators in the CSH building to provide transportation between the floors for students who cannot navigate stairs. (Id., ¶¶ 5-6.) Classrooms for students, such as R.K., who are not toilet-trained, include private bathrooms with a toilet, sink, and area for changing students' diapers. (Id., ¶ 3.) CSH also has a nursing office with a waiting area, an ...

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