On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3827-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 28, 2011 Before Judges Fuentes, Graves and J. N. Harris.
Plaintiff L.E.G. is the mother of E.G. (fictitiously Edwin), who is now fifteen years old. Plaintiff appeals from an order denying her motion to file a second amended complaint. After reviewing the record and the applicable law, we affirm.
In the summer of 2006, after Edwin completed the third grade, he was referred for an evaluation by the East Orange Child Study Team. Based on the evaluation, it was determined that Edwin was eligible for special education and related services, and an Individual Education Plan (IEP) was developed for him. Plaintiff signed the initial IEP on September 13, 2006, thereby consenting to its implementation during the 2006-2007 school year. The IEP stated that Edwin would receive "in-class support for all subjects," and he would receive two hours of instruction at home each week. However, the 2006-2007 IEP did not provide for a one-on-one aide for Edwin.
On July 23, 2007, plaintiff filed a notice of claim for damages on behalf of her son under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. Plaintiff stated in her tort claim notice that her son injured his right leg "as a result of a fall down stairs at school" on May 11, 2007. She described the accident as follows:
Nine year old special needs child was assigned a one-on-one aide. Child was sent to the bathroom alone, without aide, and fell down the stairs. Medical attention was required[.] Child's father was forced to bring child to hospital because school personnel failed to obtain an ambulance or proper medical intervention.
On the same date, July 23, 2007, plaintiff filed a petition on behalf of her son for a due process hearing with the State Director of Special Education Programs. The petition was filed against defendant, the East Orange Board of Education (Board), the entity responsible for providing special education services to Edwin. Plaintiff alleged in the petition that the Board failed to comply with "the very basic requirements of the IEP and [Edwin] was failing miserably in school." Plaintiff also claimed Edwin's regular education teachers had not been informed of his disability, and they "were engaging in a pattern of harassment and abuse of [Edwin] for the very issues that are related specifically to his disability."
Plaintiff and the Board, with the assistance of their respective counsel, resolved the issues raised in plaintiff's due process petition, and the parties entered into a written settlement agreement (Agreement) on September 6, 2007. After the agreement was approved by the Board, it was incorporated into a final order by an Administrative Law Judge on December 19, 2007. The order noted the petition alleged violations of the Individuals with Disabilities Education Act, 20 U.S.C.A. 1400 to 1482, and the parties "voluntarily agreed to resolve all disputed matters."
The agreement provided, in pertinent part, as follows:
9. The Board agrees to reimburse the parent $2,000 toward expenses in this matter. This amount is in full satisfaction of any claims the parent could raise for reimbursement under 20 U.S.C.A. § 1415 or any other federal or state statute. The parties agree that neither party shall be considered a prevailing party for any purpose. The reimbursement will be issued in accordance with Board procedure after receipt of documentation of expense.
10. In exchange for the services and reimbursement outlined herein, the parent, individually and on behalf of [Edwin], waives any and all claims that were or could have been raised against the Board to date regarding [Edwin's] education. The parent hereby releases same. This specifically excludes the pending Tort Claim Action.
11. This Agreement has been entered into freely, willingly and voluntarily, without duress or coercion and with the opportunity to consult with counsel of their choosing. The parties acknowledge that they were represented by counsel that they are pleased with their respective representation in this matter and that they understand the contents of this Settlement Agreement and Release.
12. This Agreement shall be governed by the laws of the State of New Jersey and operates as a release of ...