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L.P. v. Edison Board of Education

Decided: April 22, 1993.


Wolfson, J.s.c.


I. Introduction

This special education case presents certain perplexing questions of first impression regarding the jurisdictional and appeal provisions of the Individuals With Disabilities Education Act (IDEA), 20 U.S.C.A. Sec. 1400 et seq. At issue are the individual educational needs of L.P. (Laura), a blind, profoundly retarded, multi-handicapped 17 year old girl.

Pursuant to federal (IDEA) and State (N.J.S.A. 18A:46-1) laws, every handicapped child is entitled to a "free and appropriate public education" (FAPE). In conformance with that goal, the New Jersey Department of Education (DOE) has promulgated regulations designed to insure that the individualized educational needs of each special child are met; see, N.J.A.C. 6:28-3.6(c)

(requiring school districts to develop annually an individualized education plan (IEP) to address the educational needs of each handicapped child); and which require the local Board of Education to be financially responsible for the special education costs, including, if educationally necessary, room and board expenses. N.J.A.C. 6:28-7.4(b)(4).*fn1 Where a child's parents object to the IEP developed by the local school board, the plan's "appropriateness" may be adjudicated by filing a "due process" petition with the DOE, the procedure pursued by Laura and her parents in this case. See, N.J.A.C. 6:28-2.7.

A. Factual Background

Since 1984, Laura has attended the St. Joseph's School for the Blind (St. Joseph's) in Jersey City. St. Joseph's provided Laura with a ten month educational program for approximately three years. While a summer education program is not available, St. Joseph's does offer a one month non-residential camp and recreational program, which Laura has attended. Until 1989 Laura attended day classes only. That year she was enrolled in an overnight program enabling her to reside Monday through Thursday nights at the school. By the end of 1991, Laura's parents were concerned that their daughter was not progressing adequately, believing that a twelve month, full time residential educational program would best suit Laura's educational needs.

In early 1992, after having reviewed several possibilities, Laura's parents, in consultation with Laura's child study team, determined that the Perkins School for the Blind, in Watertown, Massachusetts, was an appropriate program for their daughter, and requested that the Edison Board of Education ("Edison" or the "Board") place her there at no cost. While the Board agreed that Perkins was an appropriate placement, it invited the Commission for the Blind and Visually Impaired (CBVI), a sub-agency within the State Department of Human Services (DHS) to assume the costs of room and board. Although the CBVI had been contributing $15,000.00 annually to defray Laura's room and board costs at St. Joseph's, the CBVI declined to honor the Board's request, purportedly because the Commission, as a matter of policy, does not make its residential placement decisions based upon "educational necessity".*fn2 Subsequent to the Commission's rejection of the Board's (and Laura's) request to fund the full time residential placement costs of Perkins, Laura's parents filed a due process petition under N.J.A.C. 6:28-2.7, seeking to require Edison to assume full financial responsibility. In response to the petition, the Board sought to compel the participation of the DHS, the Division of Developmental Disabilities (DDD), the Division of Youth and Family Services (DYFS) and the Commission for the Blind and Visually Impaired (CBVI) as party defendants, an application joined in by Laura's parents.

Ultimately, on September 28, 1992, an Administrative Law Judge (ALJ) determined that CBVI, a sub-agency of the DHS was a proper and an indispensable party to the matter in controversy, but declined to compel the joinder of the DDD, DYFS or DHS. Following a plenary hearing, the ALJ directed Laura's placement at the Perkins School, ordering the DHS (not the CBVI) to pay

the "room and board costs through whatever program or programs it deems appropriate."*fn3

Aggrieved by both the procedural and substantive determinations of the ALJ, the DHS and CBVI filed a Notice of Appeal with the Law Division of the Superior Court, an option authorized by the IDEA,*fn4 triggering the right to an independent, de novo review and decision by this court.*fn5

B. Statutory And Regulatory Background

The IDEA reflects a strong federal policy to provide an appropriate education for every handicapped child; Kruelle v. New Castle County Sch. Dist., 642 F. 2d 687, 690 (3d Cir.1981). Its

enactment underscored the perceived need for an expanded federal fiscal role in assuring protection for the rights of handicapped children throughout the United States. Id. at 691. See also, Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F. 2d 808 (3d Cir.1990). Among its purposes is to assure that all handicapped children have available to them a free and appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist states and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children. 20 U.S.C.A. Sec. 1400(c). As defined by the IDEA, handicapped children are those children with specified impairments who, because of those impairments, require special education and related services. 20 U.S.C.A. Sec. 1401(a)(1).*fn6

States receiving federal funds under IDEA must comply with an extensive set of goals and procedures to insure that all such handicapped children have access to a free and appropriate public education.*fn7 See 20 U.S.C.A. Secs. 1412, 1413 (requiring any state seeking federal aid to submit a plan assuring an FAPE to all

handicapped children, including a description of the facilities, personnel, services and time table for making such education available, a commitment to developing an IEP for each handicapped child and the establishment of procedural safeguards to protect the rights of handicapped children, parents, and guardians); and see Irving Independent School Dist. v. Tatro, 468 U.S. 883, 889, 104 S. Ct. 3371, 3375, 82 L. Ed. 2d 664 (1984).

0 consistent with its obligation under IDEA, New Jersey has enacted statutes and regulations which require all local Boards of Education in the State to identify children between the ages of five and twenty-one who may need or benefit from special education. N.J.S.A. 18A:46-6. Once identified, those children must be provided with appropriate facilities and programs of education at no cost by the local school board. N.J.S.A. 18A:46-8, 9, 10, 13 and 14; see also, N.J.A.C. 6:28-1.1(d) (each district board of education is responsible for providing a system of free, appropriate special education and/or related services to its pupils); and see, Lascari v. Board of Educ., supra, 116 N.J. at 34-35, 560 A.2d 1180 (1989).

Procedural regulations, designed to safeguard the educational rights of all handicapped children have also been enacted and the DOE has been established*fn8 as the forum agency for handling "due

process" petitions to review local agency decisions and actions regarding the provision of an FAPE for handicapped children. See, N.J.A.C. 6:28-2.7. Pursuant to those regulations, the Office of Administrative 1 Law (OAL) has been designated to hear special education complaints, N.J.A.C. 6:28-2.7(e)(4)(iv), and the decision of the ALJ on the educational needs of the child and the appropriateness of the IEP is final and binding on the parties and must be implemented without undue delay. See, N.J.A.C. 6:28-2.7(g); see also, C.S. v. Middletown Township Board of Education, 259 N.J. Super. 340, 342, 613 A.2d 492 (App.Div.1992) ...

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