On appeal from a final decision of the State Board of Education.
Antell, Long and D'Annunzio. The opinion of the court was delivered by, Antell, P.J.A.D.
Plaintiff is the father of A.A., Jr., an orthopedically handicapped child who has been voluntarily placed by plaintiff in a private school for his secondary school education. A.A., Jr.'s handicap requires the use of an individual motor vehicle with curbside drop-off and pick-up to transport him to and from school. The respondent local school district takes the position that under N.J.S.A. 18A:39-1a it need not pay more than $406 per annum for the boy's school transportation costs, an amount which is considerably less than the actual expense. Plaintiff brought this action before the Department of Education seeking to compel payment of the full cost of his special transportation requirements.
The appeal before us is from a decision of the State Board of Education affirming a dismissal by the Commissioner of Education of plaintiff's application and denying, also, plaintiff's request for a due process hearing as provided for by N.J.A.C. 1:6A-2.2. The questions presented, therefore, on this appeal from the State Board of Education are whether under state and federal legislation and administrative regulations plaintiff is entitled to (1) payment of all special transportation expenses, and (2) a due process hearing before an independent hearing officer to determine his rights.
The federal Education of the Handicapped Act (EHA), 20 U.S.C. § 1400 et seq., provides that "[i]t is the purpose of this chapter to assure that all handicapped children have available to them . . . a free appropriate education which emphasizes special education and related services designed to meet their unique needs. . . ." 20 U.S.C. § 1400(c). Special education is defined as "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction and instruction in hospitals and institutions." § 1401(16). Related services are defined as "transportation, and such developmental, corrective, and other supportive
services . . . as may be required to assist a handicapped child to benefit from special education." § 1401(17). (Emphasis supplied). The "free appropriate public education" (FAPE) required by the EHA is tailored to the needs of the handicapped child by means of an "individualized educational program" (IEP). § 1401(18). The IEP, developed at a meeting between a qualified representative of the local educational agency, the teacher, the parents and, where appropriate, the child, is a written statement which includes
(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. [§ 1401(19)].
A.A. Jr.'s IEP reveals that he is "currently functioning at or above grade level in all academic subjects," and recommends that he receive his education "in regular class." It further observes that "[a] special vehicle is needed for transportation that should meet the physical requirements of the student."
To qualify for federal financial assistance under the EHA, a state must submit a plan to the Secretary of Education, § 1413, which sets forth in detail a description of the programs and procedures designed to assure that the funds paid to the state will be expended in accordance with the provisions of the subchapter. §§ 1412, 1413. The state must demonstrate that it has established priorities for providing a FAPE to all handicapped children, first to handicapped children not receiving an education and second to handicapped children with the most severe handicaps who are receiving an inadequate education, § 1412(3), and must, "to the maximum extent appropriate," assure that handicapped children are educated with children who are not handicapped. § 1412(5). The EHA defines handicapped children to be "mentally retarded, hard of hearing, deaf, speech or language impaired, visually handicapped, seriously
emotionally disturbed, orthopedically impaired, or other health impaired children, or children with specific learning disabilities, who by reason thereof require special education and related services." § 1401(1).
The issue herein is not the availability of a FAPE. Respondent is offering a FAPE and transportation to a public school within the district. Plaintiff's contention is that even though he has voluntarily removed A.A., Jr. from the public school environment, respondent is "under a federal mandate" to provide related services, defined in § 1401(17) as transportation and other ...