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In re Repeal of N.J.A.C. 6 28 and Adoption of New Rule N.J.A.C. 6 28

Decided: June 27, 1985.

IN THE MATTER OF REPEAL OF N.J.A.C. 6:28 AND ADOPTION OF NEW RULE N.J.A.C. 6:28


On appeal from the State Board of Education.

Pressler, Brody and Cohen. The opinion of the court was delivered by Cohen, J.A.D.

Cohen

[204 NJSuper Page 160] A regulation adopted by a state agency is presumed to be reasonable and valid. Bergen Pines Hosp. v. Dept. of Human Serv., 96 N.J. 456, 447 (1984). If procedurally regular,

it may be set aside only if it is proved to be arbitrary or capricious or if it plainly transgresses the statute it purports to effectuate, New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978), or if it alters the terms of the statute or frustrates the policy embodied in it. N.J. Chamb. Commerce v. N.J. Elec. Law Enforce. Comm., 82 N.J. 57, 82 (1980).

The Public Advocate challenges regulations adopted by the Department of Education concerning education of the handicapped in public schools and of nonhandicapped residents of state institutions. The challenged regulations are parts of the 1984 comprehensive revision of N.J.A.C. 6:28, entitled Special Education, which was adopted after appropriate proposal, notice, comment and review procedures.

N.J.A.C. 6:28-3.5(e)(8) is the first provision in dispute. It defines "pre-school handicapped" for the purpose of eligibility for local special education and related services as

a condition which seriously impairs a child's functioning and which has a high predictability of seriously impairing normal educational development.

The statute purported to be implemented by the definition is N.J.S.A. 18A:46-6. It provides with regard to pre-school children:

In addition, each board of education shall also identify and ascertain, according to rules promulgated by the commissioner with the approval of the State board, those children between the ages of 3 and 5 years of age who require and who would be benefited by special education programs and services which may prevent their handicaps from becoming more debilitating.

The statute does not require the handicap to be a "serious" one. There is substantial evidence that the Legislature was concerned with early detection and amelioration of less than "serious" handicaps. Available to it was a variety of studies of the benefits of early attention to impairments before they become disabling. The Assembly Education Committee's statement described the proposed N.J.S.A. 18A:46-6 as requiring early intervention to "prevent . . . handicaps from becoming more debilitating." The Senate Education Committee added:

. . . education for the pre-school handicapped is a program of major significance for the child and for Society. By identifying and assisting these youngsters at an early age, the effects of the handicap can be minimized or even remedied, making later learning more effective, and allowing the individual to lead a more productive life.

The Department of Education meets the objection that its regulation narrows the scope of the statute by invoking its expertise and also by defining the problem away. It argues that children with mild handicaps will nevertheless be chosen for programs because even mild handicaps can cause "serious" impairment of functioning. It calls the Public Advocate's concern a "quibble over semantics" and ...


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