NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff appeals from an order dismissing her complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. We affirm.

I.

We discern the following facts from the record. Plaintiff is the parent of the minor child, a student in the Egg Harbor

Township School District with a diagnosed learning disability. On September 24, 2009, plaintiff was notified that her son was being sent home from school early that day and was suspended for ten subsequent days for inappropriately touching a teacher during horseplay. Plaintiff had previously complained about the teacher's treatment of her son.

Plaintiff filed a one-count complaint, under the New Jersey Civil Rights Act of 2004 ("CRA"), and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:15-1 to-49, alleging that the conduct of defendant was in violation of the child's constitutional right to free, appropriate public education ("FAPE") and the required accommodation of his disability, and that defendant's actions were in retaliation for plaintiff's prior complaint.

Plaintiff asserted that defendant failed to comply with a statutory duty to provide evaluations, services, and support to address and remediate the child's disability. Plaintiff sought monetary damages and any additional equitable relief the court deemed appropriate. Plaintiff also maintained that the child should have had a manifestation determination hearing to determine whether the misconduct resulted from his learning disability.

Defendant moved to dismiss the complaint for lack of jurisdiction because plaintiff had not exhausted administrative remedies under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C.A. §§ 1400-1485. Defendant argued that all of plaintiff's claims pertained to allegations that the child's disabilities were improperly addressed and were therefore subject to the requirement that administrative remedies be exhausted before filing suit. Defendant also argued that plaintiff's complaint failed to state a claim upon which relief could be granted because a manifestation determination hearing was not required for a suspension lasting no longer than ten days.

The court granted defendant's motion, dismissing plaintiff's disability discrimination claims without prejudice. The court also found that plaintiff failed to state a claim upon which relief could be granted regarding the request for a manifestation determination hearing. This appeal followed.

On appeal, plaintiff argues that the trial court erred in dismissing her complaint. First, plaintiff contests the court's determination that her CRA, LAD, and FAPE claims are a repackaged IDEA claim. Second, plaintiff contends that exhaustion of administrative remedies is not necessary for the court's subject matter jurisdiction, and that attempts to obtain administrative relief would be futile. Third, plaintiff maintains that she properly stated a claim upon which relief could be granted because she pled a suspension in excess of ten days.

II.

We begin with a review of the applicable legal principles. Education of children with disabilities is regulated by a complex scheme of federal and state statutes and administrative regulations. Lascari v. Bd. of Educ. of the Ramapo Indian Hills Reg'l High Sch. Dist., 116 N.J. 30, 33 (1989). The IDEA ensures that all children with disabilities have available to them a FAPE in the least restrictive environment that provides special education and related services to meet their unique needs, prepares them for further education, employment, and independent living, and ensures that the rights of such children and their parents are protected. See 20 U.S.C.A. §§ 1400(d)(1)(A), (B). New Jersey has adopted statutes, N.J.S.A. 18A:46-1 to-55, and regulations, N.J.A.C. 6A:14-1.1 to-9.2, to comply with the extensive goals and procedures established in the IDEA in order to receive federal funding. See 20 U.S.C.A. § 1412.

Central to the IDEA and the provision of a FAPE is the individualized education plan (the "IEP"), a comprehensive written plan developed by a team consisting of the student's parents, teachers, and representatives of the local educational agency. 20 U.S.C.A. § 1414(d). The IEP's purpose is to tailor the educational services in order to meet the special needs resulting from the student's disability and to ensure that the student receives the benefits of a FAPE. 20 U.S.C.A. §§ 1412(a)(1), (4). Regarding the development of this plan, the IDEA accords "significant deference to the choices made by school officials as to what constitutes an appropriate program for each student." Ridley Sch. Dist. v. M.R., 680 F.3d 260, 277 (3d Cir. 2012).

If parents disagree about the contents of the IEP, the IDEA provides two methods for seeking redress. They can request a due process hearing, which entails a full-fledged adjudicatory hearing, or they can file an administrative complaint with the designated state education agency, which must investigate and issue a decision within sixty days. See 34 C.F.R. § 300.152. A party aggrieved by the decision may bring an appeal from the administrative proceedings in the appropriate state or federal district court regardless of the amount in controversy. 20 U.S.C.A. § 1415(i)(2)(A).

Generally, plaintiffs must exhaust these administrative remedies before seeking judicial relief under the IDEA or other federal laws:

We note that the question of whether CRA, LAD, FAPE and similar claims grounded in state law may be brought in state court apart from an IDEA claim has not been resolved by this court or our Supreme Court. However, federal courts have determined that when a plaintiff seeks relief that is available under the IDEA, the claim is subject to the IDEA's exhaustion of administrative remedies requirement, despite the repackaging of such a claim as arising under another federal statute. See M.G. v. Crisfield, 547 F. Supp. 2d 399, 411 (D.N.J. 2008) (party cannot "cloak" IDEA claims as claims under 42 U.S.C.A. § 1983, Americans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213, or Rehabilitation Act, 29 U.S.C.A. §§ 701-796); A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 798 (3d Cir. 2007) (party cannot sue under 42 U.S.C.A. § 1983 for IDEA violations in order to bypass IDEA procedures and remedies).2

We review the trial court's conclusions of law de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We are not bound by the decisions of the federal appellate courts but will follow them if the courts' reasoning is persuasive. State v. Coleman, 46 N.J. 16, 37 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L. Ed. 2d 212 (1966). We conclude a plaintiff may not repackage an IDEA claim as arising under our statutes or Constitution and thereby avoid IDEA requirements such as exhaustion of available administrative remedies.

The rationale supporting the exhaustion requirement for IDEA claims applies here where an IDEA claim is repackaged as claims under state law. We agree that

Here, plaintiff's complaint alleges defendant failed to accommodate her son's disability, denied him a FAPE, failed to provide evaluations, services and support in order to address and remediate his disability, imposed retaliatory discipline, and failed to provide a manifestation determination hearing. All of these alleged deficiencies can be addressed administratively under the IDEA because they seek services and identification of the student's needs. Consequently, we conclude that the trial court correctly determined that plaintiff's CRA, LAD, and FAPE claims are, in fact, a repackaged IDEA claim subject to the IDEA's exhaustion requirement.

III.

Having determined that plaintiff's claims are, in essence, an IDEA claim subject to the IDEA's exhaustion requirement, the next question which must be resolved is whether the trial court properly determined that exhaustion is a jurisdictional requirement and that no excuses for failure to exhaust were applicable. "`Whether subject matter jurisdiction exists presents a purely legal issue . . . which we review de novo.'" Beaver v. Magellan Health Servs., Inc., 433 N.J.Super. 430, 437 (App. Div. 2013) (alteration in original) (quoting Santiago v. N.Y. & N.J. Port Auth., 429 N.J.Super. 150, 156 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013)), certif. denied, 217 N.J. 293 (2014).

The Third Circuit has held that the IDEA "vests a district court with jurisdiction only when a plaintiff has first followed the procedures set forth in the Act and exhausted the administrative remedies under the Act." Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (1994) (internal quotation marks omitted) (citing 20 U.S.C.A. §§ 1400-1484a). It has also said failure to exhaust may be excused only where "(1) exhaustion would be futile or inadequate; (2) the issue presented is a purely legal question; (3) the administrative agency cannot grant relief; and (4) exhaustion would cause severe or irreparable harm." D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014) (citing Komninos, supra, 13 F.3d at 778).

However, our Supreme Court has emphasized that exhaustion of administrative remedies is a well-established defense, Jorgensen v. Pennsylvania R. Co., 25 N.J. 541, 556-58 (1958), which "does not go to the jurisdiction of the Superior Court . . . [but rather goes] to the question of whether or not the matter is ripe, as a matter of policy, for judicial determination." Nolan v. Fitzpatrick, 9 N.J. 477, 484-85 (1952).3 Therefore, we conclude the trial court erred when it determined that the matter must be dismissed for lack of subject matter jurisdiction. However, we also conclude that the court properly dismissed plaintiff's claim without prejudice on the alternative basis that she failed to establish an exception to the exhaustion requirement.

Here, the relevant exception to the exhaustion requirement is where exhaustion would be futile. D.E., supra, 765 F.3d at 275. Plaintiff never contested that she failed to exhaust all available administrative remedies but argues that exhaustion would be futile because her son is now in high school and his unlawful, discriminatory, and retaliatory suspension occurred when he was in seventh grade and cannot be undone. Moreover, she asserts that monetary damages is the only available remedy.

The party seeking to avoid exhaustion bears the burden of showing futility. Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 249 (2d Cir. 2008). Relevant factors to consider when determining whether to excuse exhaustion on futility grounds include, but are not limited to: (1) "whether plaintiff diligently pursued administrative relief; (2) whether plaintiff acted reasonably in seeking immediate judicial review[;]" and (3) failure of a defendant "to comply with its own internal administrative procedures[.]" Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 250 (3d Cir. 2002). Moreover, "a prayer for damages does not enable a plaintiff to sidestep the exhaustion requirement of the IDEA." Cave, supra, 514 F.3d at 246 (citation and internal quotation marks omitted).

We conclude that plaintiff has not established that pursuing administrative remedies would be futile or that defendant could not grant relief. Plaintiff filed her complaint two years after the incident which led to her son's suspension. Plaintiff cannot choose to forego the administrative remedy and now argue that the passage of time renders such a remedy futile. If administrative remedies are exhausted and are insufficient, plaintiff can again seek relief from the courts. Moreover, following the administrative procedures called for by the IDEA will more fully develop the record for later appellate review, if necessary. To hold otherwise would render superfluous the IDEA's detailed procedural protections and conflict with the Congressional goal of accommodating special needs children by having parents and schools work together. See MG, supra, 804 F. Supp. 2d at 313. The trial court therefore properly dismissed the matter without prejudice.

IV.

We also reject plaintiff's argument that the motion judge erred in determining a manifestation determination hearing was not required and dismissing plaintiff's claim for failure to state a valid cause of action. "In considering a motion to dismiss under Rule 4:6-2(e), courts search the allegations of the pleading in depth and with liberality to determine whether a cause of action is suggested by the facts." Rosen v. Cont'l Airlines, Inc., 430 N.J.Super. 97, 101 (App. Div. 2013) (citation and internal quotation marks omitted). Every reasonable inference is accorded to the plaintiff. Smith v. SBC Commc'ns, Inc., 178 N.J. 265, 282 (2004). Appellate review of such a motion "is governed by the same standard as that applied by the trial court." Donato v. Moldow, 374 N.J.Super. 475, 483 (App. Div. 2005).

"School personnel . . . may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days[.]" 20 U.S.C.A. § 1415(k)(1)(B). Longer removals require a manifestation determination hearing. 20 U.S.C.A. § 1415(k).

We conclude that the trial court correctly determined that the minor was not suspended for more than ten days; thus, a manifestation determination hearing was not required. We discern no reason to hold that the day the minor was sent home early should be considered an additional day in which he was removed from his educational placement.

Affirmed.