B.B.S., Etc. v. Greenwich Township Board of Education

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2566-24 B.B.S., individually and on behalf of A.S., Plaintiff-Appellant, v. GREENWICH TOWNSHIP BOARD OF EDUCATION, Defendant-Respondent. _________________________ Argued September 15, 2026 – Decided September 25, 2026 Before Judges Mawla and Chase. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1018-24. Jamie Epstein argued the cause for appellant. Sandro Polledri argued the cause for respondent (Weiner Law Group LLP, attorneys; Sandro Polledri, on the brief). PER CURIAM Plaintiff B.B.S., individually and on behalf of her minor son A.S., appeals from an April 14, 2025 order of final judgment entered by the Law Division, denying her motion for judgment and entering judgment in favor of defendant Greenwich Township Board of Education (Board). We reverse and remand for further proceedings consistent with this opinion. In 2021, A.S. enrolled in the Greenwich Township School District and began struggling in math and English/language arts. As a result, he was referred to the District's speech therapist for evaluation and found eligible for speech therapy, which plaintiff consented to in December 2021. A.S. also had other concerns, including toileting accidents, which were remedied following a doctor's visit and implementation of a toileting schedule. He also had behavioral problems, which required the assistance of support staff. The following school year, A.S.'s behavioral issues worsened. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in November 2022. On November 14, 2022, the District provided A.S. with a 504 Plan,1 1 Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794 is a civil rights law prohibiting discrimination against individuals with disabilities. 34 C.F.R. § 104.4 (1). It ensures children with qualifying disabilities receive equal access to education like students without disabilities. 4 C.F.R. §§ 104.4 (b)(ii), 104.24. After a child is referred for an evaluation, a determination is made as to whether they qualify for accommodations under A-2566-24 2 which plaintiff consented to. That day, plaintiff requested the District evaluate A.S. to see if he qualified for special education and related services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 to 1482. Plaintiff met with the District's child study team (CST) and consented to the proposed evaluation consisting of psychological, social history, speech and language, and learning assessments. The District completed the evaluation and met with plaintiff to discuss the results in February 2023. It found A.S. was eligible for special education and related services under the classification of Other Health Impairment (OHI), 34 C.F.R. § 300.8 (c)(9), and proposed an Individualized Education Program (IEP). 2 Section 504; hence a 504 Plan. 34 C.F.R. § 104.35 . If the child is eligible, they must be provided with accommodation that allows them equal access to education. 34 C.F.R. § 104.34 . 2 An IEP is a document memorializing the special education and related services a child requires to receive a "free and appropriate public education" (FAPE). A child receives a FAPE when their education plan is designed to ensure their unique needs are met and they receive a meaningful educational benefit. 20 U.S.C. § 1401 (9); 34 C.F.R. §§ 300.17 , 104.33; see J.T. v. Dumont Pub. Schs., 438 N.J. Super. 241, 257 (App. Div. 2014). A-2566-24 3 Plaintiff disagreed with the proposed IEP and requested an Independent Educational Evaluation (IEE) at public expense. 3 On March 3, 2023, the Board filed a petition for due process in the Office of Administrative Law (OAL) disputing the need for an IEE and seeking a hearing to show the evaluation conducted was appropriate and complied with special education statutes and regulations. The first administrative law judge (ALJ) heard this claim. On March 27, 2023, plaintiff filed a request for emergent relief in a separate proceeding before the New Jersey Department of Education (DOE) to enjoin the District from implementing the IEP, arguing A.S. was not adequately assessed and disputing his classification as OHI. The DOE denied plaintiff's request as non-emergent and transferred it to the OAL for a hearing. This matter was docketed separately and heard by the second ALJ. The parties worked together to resolve both matters. On July 25, 2023, they appeared before the first ALJ to put the terms of the settlement on the 3 If a parent disagrees with a school district's evaluation, they may request an IEE comprised of assessments performed by private professionals–as compared to assessments performed by the district's own employees and hired contractors. N.J.A.C. 6A:14-2.5(c); 34 C.F.R. § 300.502 . The IEE is "provided at no cost to the parent," N.J.A.C. 6A:14-2.5(c)(1), and "at public expense," 34 C.F.R. § 300.502 (b)(l). A-2566-24 4 record. Plaintiff's attorney questioned her and she confirmed she understood the agreement, which required the Board to pay for various assessments and her counsel fees and costs. The agreement also provided the Board would not implement the IEP without plaintiff's consent. During the voir dire, plaintiff's attorney confirmed the agreement meant "in consideration of what . . . the Board is promising to do . . . you are required to waive two claims." The first waived claim pertained to the Board's "denial of [plaintiff's] request for an [IEP]" and the second dealt with the Board's "implementation of the [February 15, 2023] IEP without [plaintiff's] consent." Plaintiff understood she was "not entitled to any other consideration from the Board under th[e] agreement," beyond what was already discussed. The ALJ then stated: I think you pretty much covered most of the voir dire. . . . I heard and I'm sure you understand but you understand that this is a resolution of the pending claims and . . . I'm sure counsel has explained to you a resolution of claims up until final resolution of this matter. And it doesn't preclude any future action with respect to your son and the school. And he's explained that all to you? Plaintiff responded affirmatively. Her attorney then stated he "ha[d] something to add based on what [the ALJ] just asked," specifically providing plaintiff was releasing the claim raised in the cases being heard by the first and second ALJ. A-2566-24 5 "[S]he's not releasing all claims that she had or ever had. She's only releasing those two claims. The claims that were in . . . each petition." The ALJ responded plaintiff did not "want to open up a can of worms. But [would] . . . leave it to [the Board's attorney] if he has any further questions." The following colloquy ensued: [The Board's Attorney]: . . . Judge it's an extremely narrow issue. . . . [T]he District's case is the IEE[]'s denial. [ALJ]: Yeah. [The Board's Attorney]: So again, it has nothing substantive to do with any IEP or denial of [a] FAPE or anything like that. It's just a denial . . . of the IEE's. And we're resolving that by providing the IEE. And also [plaintiff's] petition was a little bit unusual [in] that it sort of included the stuff that was in [the] District's petition a little bit. But also it had a few lines indicating [her] belief that the IEP was implemented without her approval of the initial IEP. So, her claim regarding . . . [what] the District [is] doing[;] she's waiving that. And we're fine with the language that's identified. On August 8, 2023, the parties executed the settlement agreement and release, which provided: "in consideration of mutual promises and covenants, and other good and valuable considerations set forth herein, the parties agree as follows to resolve both" cases pending before the first and second ALJs, A-2566-24 6 respectively. Under the settlement, the Board agreed to pay for an IEE comprised of seven independent assessments and plaintiff's counsel fees and costs. It also consented to "not implement an initial IEP without [plaintiff]'s written consent." The agreement then provided, in pertinent part: 5. In consideration of the above, [plaintiff], individually and [on behalf] of A.S. hereby fully and completely releases the District, its Board, attorneys, employees, Directors, administrators (both past and present) and agents through the date this Settlement Agreement is signed by both parties limited to: [1]. [plaintiff]/[A.S.] waive their claim regarding the [Board]'s denial of their [February 21, 2023] request for an IEE; and 2. [plaintiff]/[A.S.] waive their claim regarding the [Board]'s implementation of [A.S.'s] [February 15, 2023] IEP without [plaintiff]'s consent. On August 22, 2023, the second ALJ held a hearing to address concerns plaintiff had with the language in the final decision approving the settlement. Specifically, paragraph two of the original final decision, which provided, "[t]he settlement and Board approval fully disposes of all issues in controversy between them and is consistent with the law." After a lengthy colloquy between counsel for the parties and the second ALJ, the ALJ issued a final decision approving settlement, amended by consent of both parties, stating: The parties have voluntarily agreed to resolve all disputed matters and have entered into a settlement as set forth in the attached document. A-2566-24 7 I have reviewed the terms of settlement and Board approval and I FIND: 1. The parties have voluntarily agreed to the settlement as evidenced by their signatures or their representatives' signatures on the attached Settlement Agreement and Release, along with the Board approval, sent via email on August 16, 2023. . . . 2. The settlement and Board approval fully disposes of all issues contained in the Settlement Agreement and Release . . . . Specifically, petitioners waive their claim regarding respondent's implementation of the February 15, 2023, [IEP] without petitioner's consent. Therefore, I ORDER that the parties comply with the settlement terms and that these proceedings be concluded. This decision is final pursuant to 20 U.S.C. § 1415 (i)(1)(A) and 34 C.F.R. § 300.514 (2022). If the parent or adult student feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, Office of Special Education. The same day, plaintiff wrote to the first ALJ explaining the amendment to the final decision in the companion case before the second ALJ and that the matter had settled. Plaintiff requested a similar modification to the final decision in the matter before the first ALJ. On September 11, 2023, the first ALJ issued an amended final decision, which read as follows: A-2566-24 8 The parties have voluntarily agreed to resolve all disputed matters and have entered into a settlement as set forth in the attached fully-executed Settlement Agreement and Release. I have reviewed the terms of settlement and I FIND: 1. The parties have voluntarily agreed to the settlement of the petition, as evidenced by the parties' signatures, or their representatives' signatures, on the attached Settlement Agreement. 2. The settlement and Board approval fully disposes of the issues of the [Board's] denial of [plaintiff] on behalf of A.S.'[s] February 21, 2023, request for [an IEE]. Therefore, I ORDER that the parties comply with the settlement terms and that these proceedings be concluded. The settlement and Board approval fully disposes of all issues in controversy between them and is consistent with the law. On September 29, 2023, the first ALJ amended the final decision again to include the following: "This decision is final pursuant to 20 U.S.C. § 1415 (i)(1)(A) and 34 C.F.R. § 300.514 (2022). If the parent or adult student feels that this decision is not being fully implemented with respect to program or services, this concern should be communicated in writing to the Director, [OSE]." A-2566-24 9 Pursuant to the settlement, the Board paid for the IEEs. The final assessment was completed on November 8, 2023. However, several of the reports were not provided to the Board until November 27, 2023. On November 27, 2023, plaintiff filed a due process petition against the Board based on the findings of the IEE reports. She requested the third ALJ find: A.S. is a child eligible for special education and related services; the Board's evaluation was not appropriate; the Board's proposed IEP failed to offer A.S. an appropriate classification, placement, and program; the Board failed to perform its affirmative Child Find duty to offer A.S. a FAPE; and the Board failed to offer A.S. an appropriate 504 Plan. Plaintiff also requested the Board offer A.S. eligibility for special education and related services consistent with the IEE findings and recommendations. She asked the Board to provide A.S. with an IEP reasonably calculated to provide him with a FAPE as well as an appropriate 504 Plan consistent with the IEE. Plaintiff requested the Board offer A.S. compensatory education for the period the Board knew or should have known he was being denied a FAPE consistent with the IEE. On December 20, 2023, the parties met for an IEP meeting and the Board offered A.S. an IEP with an out-of-district placement and program, as well as A-2566-24 10 transportation services. Plaintiff consented to the proposed IEP on January 25, 2024. On March 7, 2024, the Board filed a motion for summary decision pursuant to N.J.A.C. 1:1-12.5, arguing plaintiff's petition was mooted by the parties' August 2023 settlement agreement and plaintiff's consent to the new IEP. A third ALJ heard the motion. On May 21, 2024, the ALJ granted the Board's motion. He found there were no material facts in dispute. The final decisions issued by the first and second ALJs were in effect and "the documents . . . speak for themselves." Neither the final decision nor the August 2023 settlement agreement contained a reservation clause or carve outs. "By the plain language of the [f]inal [d]ecisions, the parties—both represented by counsel at the time—'agreed to resolve all disputed matters' and 'entered into a settlement agreement.'" The ALJ found the issue plaintiff raised in the third matter "arose in February 2023," but had been incorporated into both final decisions which followed it. "[T]he language of the [f]inal [d]ecisions, wherein each states it covers 'all disputed matters' and was entered six and seven months later, respectively, cuts harshly against any such reservation." A-2566-24 11 In other words, the issue raised in plaintiff's third petition was precluded because it preceded and was subsumed by the subsequent settlement and entry of both final decisions. The ALJ observed plaintiff "did not provide any facts asserting the [C]hild [F]ind issue allegedly arising in February 2023 was unknown or unknowable at the time the two [f]inal [d]ecisions were entered." Plaintiff was represented by counsel during the settlement discussions and had the opportunity to modify the language in the final decisions. The ALJ concluded: While couched in different terms, what [plaintiff] seeks, vis-à-vis her third petition, is to reopen a matter(s) or to claim that an ambiguity permits the prosecution of an issue arising in February 2023, one which substantially predates the settlement agreement and two [f]inal [d]ecisions. Under either, there is a want of jurisdiction in the [OAL]. Neither is permitted—at least not in the OAL. Plaintiff appealed from the May 21, 2024 final decision. She sought a remand to the OAL for "a full plenary due process hearing." Plaintiff argued: the settlement agreement was limited to two waivers; she did not waive the claims brought in her November 27, 2023 petition; the third ALJ deprived her of the right to a due process hearing under the IDEA by granting a summary decision; although summary decisions are permitted under the administrative code, those regulations are preempted by the IDEA, which mandates the right to A-2566-24 12 a hearing; a summary decision was improper in any event because there were material facts in dispute; and even if she waived her other claims, the compensatory education for the time A.S. was denied a FAPE was not waived because it occurred after the parties executed the settlement agreement. On April 14, 2025, the trial judge issued a written opinion denying plaintiff's motion. He found the parties had reached a settlement "without compensatory time being demanded." Plaintiff's voir dire confirmed she was entitled to no other consideration "beyond what[ is] in the agreement." The judge recounted the colloquy the parties had with the first ALJ when they settled the matter and concluded it proved plaintiff abandoned all her claims up to the date of the settlement. He stated: The [c]ourt finds that absent language reserving other claims, [p]laintiff released all claims one of which would have to be a claim for compensatory time. This agreement is fully executed and led the [Board] to reasonably believe it disposed of the cases. The [c]ourt finds it is against public policy and contract law to try to add additional terms and/or unilaterally reserve claims without the knowledge or consent of the other party entering into this agreement. The [c]ourt further notes that a party seeking to supplement the record has a heightened burden to justify why the evidence was not previously represented. A-2566-24 13 The judge concluded: It would be unjust to allow one party to a settlement to enter into an agreement which disposes of all claims and then claim they reserved a separate claim even though it is not written into the agreement. There would otherwise be no way of knowing when a case is settled[.] The parties had agreed the Board would pay for the IEE assessments, which were performed between September and November 2023. The judge noted "[p]laintiff did not provide the [Board] or the [CST] enough time to review the IEEs and produce an IEP." Plaintiff did not provide "any evidence that the implementation of the plan took unreasonably long." The trial judge found the third ALJ did not err in granting summary decision without a due process hearing. This is because under 20 U.S.C. § 1415 (f)(1)(A) the IDEA affords the "opportunity" for a hearing once a complaint is filed and even then, the conduct of the hearing is "determined by State law or by the State educational agency." The judge concluded: New Jersey has implemented special education regulations in accordance with the IDEA. Under N.J.A.C. 1:1-12.5 a party may move for summary decision upon all or any of the substantive issues in a contested case. Nowhere in the statutory language does it require an ALJ to hold a hearing to rule on a motion for summary decision when the matter has been settled. I. A-2566-24 14 Plaintiff argues the trial judge applied the wrong standard of review when he reviewed her claims. He also erred when he found she waived the compensatory education claim because the August 2023 settlement agreement explicitly waived two claims, neither of which were for a compensatory education. Even if the settlement agreement waived the compensatory education claim, it did not cover the time following execution of the agreement. Plaintiff asserts if the agreement was ambiguous about what was waived, the judge should have construed it against the Board as its drafter. The IDEA mandated the judge order a due process hearing. Additionally, summary decision was improperly granted because there were material facts in dispute. II. "The rights of students with learning disabilities arise in general from federal law, . . . embodied in the . . . (IDEA), 20 U.S.C. § 1401 ." Hasbrouck Heights Bd. of Educ. v. W.J., 358 N.J. Super. 8, 11 (App. Div. 2003). The IDEA contains "specific provisions guaranteeing a due process hearing, 20 U.S.C. § 1415 (f)(1), and permitting an appeal from that decision, consistent with state law, through the State educational agency, 20 U.S.C. § 1415 (g)." Ibid. "The right to pursue relief following an administrative determination as specified in IDEA is, by the terms of the statute itself, a right to do so by A-2566-24 15 initiating a civil action," ibid. (citation omitted), in either state or federal court, Ridley School District v. M.R., 680 F.3d 260, 268 (3d Cir. 2012). "The statutory requirements governing the right to a remedy by way of a civil action created in [the] IDEA contemplate a proceeding unlike an appeal and inappropriate for consideration in the first instance by the Appellate Division." Hasbrouck Heights Bd. of Educ., 358 N.J. Super. at 12 . Although parties may assert the only matters to be decided are legal in nature, "'there often arises the need to make preliminary findings of disputed facts.'" Ibid. (quoting C.S. v. Middletown Twp. Bd. of Educ., 259 N.J. Super. 340, 342 (App. Div. 1992)). While "commonly referred to as appeals," this sort of "proceeding is not one which proceeds only upon the record compiled before the agency, but one which affords the opportunity for the creation of a broader record for analysis by the trier of fact." Ibid. The trial court: "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415 (i)(2)(C). The trial court applies a "modified de novo" standard, meaning it must give "due weight" and "deference" to the findings of the ALJ, but legal issues are reviewed de A-2566-24 16 novo. Moorestown Twp. Bd. of Educ. v. S.D., 811 F. Supp. 2d 1057, 1064 (D.N.J. 2011) (citing D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564 (3d Cir. 2010)). Findings of fact are reviewed for clear error, but the reviewing court must "give a fresh review" of the legal standards and conclusions. B.S.M. v. Upper Darby Sch. Dist., 103 F.4th 956, 962 (3d Cir. 2024). "[A] motion for judgment on the administrative record is similar to a motion for summary judgment . . . ." Ibid. Thus, our review is de novo, Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999), "employ[ing] the same standard [of review] that governs the trial court." Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). "Contract law governs the interpretation of a settlement agreement." GMAC Mortg., LLC v. Willoughby, 230 N.J. 172, 185 (2017). Accordingly, "a valid settlement agreement requires an 'offer and acceptance' by the parties, and the terms of the agreement must 'be sufficiently definite [so] that the performance to be rendered by each party can be ascertained with reasonable certainty.'" Ibid. (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (internal quotation marks omitted)). Courts enforce contracts according to "the intent of the parties, the express terms of the contract, surrounding circumstances and the underlying purpose of the contract." Barila v. Bd. of A-2566-24 17 Educ. of Cliffside Park, 241 N.J. 595 , 615-16 (2020) (quoting In re Cnty. of Atl., 230 N.J. 237, 254 (2017)). "The plain language of the contract is the cornerstone of the interpretive inquiry; 'when the intent of the parties is plain and the language is clear and unambiguous, a court must enforce the agreement as written, unless doing so would lead to an absurd result.'" Id. at 616 (quoting Quinn v. Quinn, 225 N.J. 35 , 45 (2016)). Pursuant to these principles, we initially note the parties' settlement agreement is not ambiguous. It clearly states plaintiff waived two claims, namely; the Board's denial of the February 21, 2023 request for an IEE and the Board's implementation of the February 15, 2023 IEP without plaintiff's consent. It is true the agreement "completely released" the Board, but that release was followed by the restrictive phrase stating it was "limited to" the two enumerated claims related to the IEE and IEP. The final decisions entered by the first and second ALJs contain the same broad-to-narrow language. Plaintiff's third complaint for the denial of a FAPE arose from the IEEs, which were produced pursuant to the settlement. It was not a part of either claim enumerated in the settlement. If the parties wanted the settlement to include all claims plaintiff could have asserted, they could have drafted such language accordingly. This is why in each proceeding, plaintiff objected to the inclusion A-2566-24 18 of language broader than the enumerated claims. Notably, when the parties were before the first ALJ, the Board's attorney acknowledged the settlement had nothing to do with the denial of a FAPE. For these reasons, we part ways with the third ALJ and the trial judge's views the settlement agreement was broader or required a carve out of unenumerated claims. Although it is not clear from his decision, it appears the trial judge may have relied on an incorrect version of the first ALJ's final decision . He found as follows: Plaintiff states that they reserved their claim for compensatory education, but the [c]ourt finds otherwise. Furthermore, [the first] ALJ . . . reviewed the settlement on August 31, 2023, and found that: 1. the parties voluntarily agreed to the settlement and 2. the settlement fully disposes of all issues in controversy between them and is consistent with the law. . . . Plaintiff[,] unhappy with the ALJ findings[,] emailed the [c]ourt stating there was an error in the final decision. On September 29, 2023, [the] ALJ . . . issued an inter-office memorandum stating there was an error on page two[,] which should have stated: This decision is final pursuant to 20 U.S.C. § 1415 (1)(A) and 34 C.F.R. § 300.514 (2023). . . . A-2566-24 19 Again, it is unclear whether the trial judge was aware the first ALJ had dropped "the settlement fully disposes of all issues in controversy between them and is consistent with the law" language. We also reject the trial judge's finding "[b]oth parties had ample time to bring forth and include any claim necessary to complete this agreement." As a practical matter, a parent may not know whether there has been a denial of a FAPE and thus an entitlement to a compensatory education until after they receive an IEE. For these reasons as well, any FAPE claim could not have been a part of the settlement. Finally, we are persuaded by plaintiff's claim she was entitled to a due process hearing. We have held the IDEA "includes specific provisions guaranteeing a due process hearing, 20 U.S.C. § 1415 (f)(1), and permitting an appeal from that decision, consistent with state law, through the [s]tate educational agency, 20 U.S.C. § 1415 (g)." Hasbrouck Heights Bd. of Educ., 358 N.J. Super. at 11 (emphasis added); see also J.H.R. v. Bd. of Educ. of E. Brunswick, 308 N.J. Super. 100, 106 (App. Div. 1998). Although there may be some instances when an ALJ or the parties may wish to dispense with a hearing, we do not interpret 20 U.S.C. § 1415 (f)(1)(A), which states a party "shall have an opportunity for an impartial due process A-2566-24 20 hearing, which shall be conducted . . . as determined by State law or by the State educational agency" in the same manner as the trial judge. The judge's emphasis on "opportunity" in his opinion does not necessarily mean that a hearing is optional in every circumstance because it is preceded by "shall." The use of the word "shall" in a statute is generally mandatory. Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 588 (2013). Although the judge correctly noted N.J.A.C. 1:1-12.5 permits a party to move for summary decision, we do not view that as mutually exclusive of the due process rights contained in 20 U.S.C. § 1415 (f)(1)(A); especially, whereas here, the issue of the FAPE was contested on the facts. Instead, we interpret the regulation harmoniously with IDEA as permitting a party to swiftly bring a litigation to a conclusion on summary decision where the facts and the law warrant it. For these reasons, the April 14, 2025 order is reversed and the matter remanded for a due process hearing in the OAL. Nothing in our decision should be interpreted as an opinion on what the outcome of this matter should be , whether it is once again settled or tried. Reversed and remanded. We do not retain jurisdiction. A-2566-24 21