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Baer v. Klagholz

April 04, 2001

WENDE BAER, PATTY BIETH, COLLEEN DOOLEY, DIANNE VASQUEZ, NEW JERSEY PROTECTION & ADVOCACY, INC., STATEWIDE PARENT ADVOCACY NETWORK, JERSEY CITY SPECIAL EDUCATION PARENTS COUNCIL, AND ALLIANCE FOR THE BETTERMENT OF CITIZENS WITH DISABILITIES, APPELLANTS,
v.
LEO KLAGHOLZ, COMMISSIONER, DEPARTMENT OF EDUCATION, AND STATE BOARD OF EDUCATION, RESPONDENTS.



Before Judges Stern, Collester and Fall.

The opinion of the court was delivered by: Fall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 12, 2000

On appeal from the promulgation of administrative regulations by the State Board of Education and the Commissioner of the Department of Education.

These appeals, consolidated for opinion purposes, challenge numerous special education administrative regulations promulgated by respondents, Leo Klagholz,*fn1 Commissioner of the New Jersey Department of Education (Commissioner) and adopted by the State Board of Education (Board), pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1487.

Appellants, Wende Baer, Patty Lieth, Colleen Dooley, and Diane Vasquez, are parents of children with neurologically-based disabilities who receive special education and related services. Appellants, New Jersey Protection & Advocacy, Inc., Statewide Parent Advocacy Network, Jersey City Special Education Parents Council, and Alliance For The Betterment of Citizens With Disabilities, are organizations representing the interests of children with disabilities, and their parents.

Table of Acronyms

CBVI New Jersey Department of Human Services, Commission for the Blind and Visually Impaired

CI communication impaired

CST child study team

DDD New Jersey Division of Developmental Disabilities

DOE New Jersey Department of Education

DVRS New Jersey Department of Labor, Division of Vocational Rehabilitation Services

ESY extended school year

FAPE free appropriate public education

IDEA Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400 to 1487

IEP individualized education program

LEA local educational agency

LRE least restrictive environment

SEA state educational agency

SLD specific learning disability

USDOE United States Department of Education

I. Procedural History of Challenges

On August 25, 1994, Governor Christine Todd Whitman issued Executive Order No. 22 directing the Department of Education (Department or DOE) to "complete a comprehensive and thorough review of all current administrative regulations" and to refer to the Board "[a]ll regulations which are not necessary or which promote inefficiency or are overly prescriptive." 26 N.J.R. 3783(a) (Sept. 19, 1994). On November 2, 1994, the Governor issued Executive Order No. 27, which required all State agencies to limit regulation of federal and state programs and to justify any decision to adopt an administrative rule for a program established under federal law or state statute that exceeds the requirements of an existing federal standard. 26 N.J.R. 4723(a) (Dec. 5, 1994).

On August 7, 1996, the Commissioner directed a policy memorandum to members of the Board, addressing the need for amendment to the then-existing special education rules, N.J.A.C. 6:28-1.1 to -12.1. The Board considered discussion-level drafts of proposed amendments, with comments and responses, and made them available to the public at the Board meetings of November 5, 1997 and December 3, 1997.

The Board held public hearings on December 17, 1997, January 27, 28, and 29, 1998, and accepted written comments through January 30, 1998. The Board received comments on the proposed special education regulations from over six hundred individuals and organizations. On March 4, 1998, the Commissioner directed a memorandum to members of the Board, summarizing the proposed new regulations and stating, in pertinent part:

This comprehensive review was conducted to improve special education programs by assuring a balance of flexibility and safeguards. An optimal level of regulation assures that the focus of special education is on instruction and the focus of the instruction is in the core curriculum content standards so that students with disabilities are afforded high quality instruction in a challenging curriculum designed to achieve high standards. Students with disabilities will also be included in the accountability system by participating in statewide assessments. Through such participation, the department may review individual progress and program effectiveness as it does for all students. Finally, the review was conducted to comply with the Individuals with Disabilities Act, 20 U.S.C. §§ 1400 et seq., which was reauthorized on June 4, 1997.

The basis of the proposed new rules was presented as a policy statement to the State Board of Education on August 7, 1996. The major elements of the policy statement provided for: flexibility in the functioning of the child study team, changes in the evaluation process, elimination of the categorical classification system, a reduction in the number of special class types, establishment of class size limits, inclusion of all students with disabilities in statewide assessment, and incorporation of the separate rules regarding the plan to revise special education. In addition, clarification of existing rules regarding consent, notice, meetings, discipline, approved clinics and agencies, case manager, home instruction, services in nonpublic schools, and elimination of the outcomes-based innovative project were proposed.

As noted above, the Individuals with Disabilities Act was recently reauthorized. There were many changes to the Act and, as a result, the regulations were further modified to reflect these new provisions. The federal requirements for discipline have been incorporated by reference. The United States Department of Education (USDOE) has indicated that they will adopt regulations in the spring of 1998 to implement the act. It is highly likely that this will again require some revisions to these rules.

The Board then revised some areas of the pre-proposal and published the proposed regulations on April 6, 1998 for additional comment. 30 N.J.R. 1219(b) (Apr. 6, 1998). The Board held a public hearing on April 15, 1998. The Commissioner sent a memorandum to the Board dated June 3, 1998, summarizing and analyzing the proposed regulations. The Board adopted the proposed regulations at its June 3, 1998 meeting, and the regulations became effective on July 6, 1998.

The challenged regulations, codified at N.J.A.C. 6A:14-1.1 to -10.1, superseded and replaced the earlier special education regulations, N.J.A.C. 6:28-1.1 to -12.1. On August 20, 1998, appellants filed a notice of appeal, challenging several provisions contained in the promulgated regulations, and raising fifty-five separate issues in their case information statement. This appeal was docketed as A-7451-97T1.

On August 3, 1998, the Board published proposed amendments to certain sections of the new code. 30 N.J.R. 2852(a) (Aug. 3, 1998). On October 7, 1998, the Board adopted the amendments and they became effective on November 2, 1998. 30 N.J.R. 3491(a) (Nov. 2, 1998). On December 16, 1998, appellants filed an amended notice of appeal, to include these rule amendments in their challenge.

On March 12, 1999, the USDOE adopted new regulations, codified at 34 C.F.R. Part 300, which became effective on May 11, 1999. 64 Fed. Reg. 12406 (Mar. 12, 1999). As a result of these revised federal regulations, the Commissioner sought to revise New Jersey's special education regulations to assure conformity, and proposed amendments for the Board to consider. On March 6, 2000, the Board issued proposed amendments to the regulations. 32 N.J.R. 755(a) (Mar. 6, 2000). On May 5, 2000, these amendments were adopted, effective June 5, 2000. 32 N.J.R. 2052(a) (June 5, 2000). Included in the publication of the adoption was a summary of comments from twelve different sources and responses thereto by the Board.

On July 14, 2000, appellants filed a motion with this court, seeking leave to file an amended notice of appeal to encompass challenges to the June 5, 2000 rule amendments adopted by the Board. On July 27, 2000, we entered an order directing that the proposed amended notice of appeal be treated and docketed as a new appeal, and be calendared back-to-back with A-7451-97T1. In accordance with that order, the amended notice of appeal was docketed as A-6273-99T1.

Since adoption of the June 5, 2000 amendments to the regulations resolved a number of issues raised in the original appeal, A-7451-97T1, appellants, at our request, by letter dated December 15, 2000, outlined those claims that have now been resolved by the new amendments, or withdrawn, and those regulations they continue to challenge. Our opinion will focus only on those regulations still challenged by appellants.

II. The Federal Requirements

"Although education is primarily a concern of state and local governments, the education of handicapped children is regulated by a complex scheme of federal and state statutes and administrative regulations." Lascari v. Board of Educ., 116 N.J. 30, 33 (1989). In In re Adoption of Amendments to N.J.A.C. 6:28-2.10, 305 N.J. Super. 389 (App. Div. 1997), we summarized the federal initiative and its relationship to this State, as follows:

The IDEA (formerly the Education of All Handicapped Children Act (EAHCA)), provides federal money to assist states and local agencies in educating handicapped children. Receipt of those funds is conditioned on a participating state's compliance with the IDEA's goals and requirements. New Jersey has elected to participate in the federal program. As such, it has enacted legislation, N.J.S.A. 18A:46-1 to -46, and adopted regulations, N.J.A.C. [now 6A:14-1.1 to –10.2], that assure all handicapped children the right to a free appropriate public education (FAPE) as required by the IDEA. [Id. at 394 (other citations omitted).]

Accordingly, "the education of handicapped children is an exercise in cooperative federalism." Lascari, supra, 116 N.J. at 33. In enacting the IDEA, Congress concluded, inter alia, that the education of children with disabilities can be made more effective by,

(A) having high expectations for such children and ensuring their access in the general curriculum to the maximum extent possible;

(B) strengthening the role of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children in school and at home;

(C) coordinating this chapter with other local, educational service agency, State and Federal school improvement efforts in order to ensure that such children benefit from such efforts and that special education can become a service for such children rather than a place where they are sent; [and]

(D) providing appropriate special education and related services and aids and supports in the regular classroom to such children, whenever appropriate[.] [20 U.S.C.A. § 1400(c)(5)(A)-(D).]

Congress also determined that,

While States, local educational agencies, and educational service agencies are respon- sible for providing an education for all children with disabilities, it is in the national interest that the Federal Government have a role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law. [20 U.S.C.A. § 1400(c)(6).]

Congress also recognized its obligation to "be responsive to the growing needs of an increasingly more diverse society[,]" and the need for "[a] more equitable allocation of resources . . . to meet its responsibility to provide an equal educational opportunity for all individuals." 20 U.S.C.A. § 1400(c)(7)(A). Congress found that

"[t]aken together as a group, minority children are comprising an ever larger percentage of public school students[,]" 20 U.S.C.A. § 1400(c)(7)(D), and that "[t]he limited English proficient population is the fastest growing in our Nation[.]" 20 U.S.C.A. § 1400(c)(7)(F). Congress concluded that "[g]reater efforts are needed to prevent the intensification of problems connected with mislabeling and high dropout rates among minority children with disabilities." 20 U.S.C.A. § 1400(c)(8)(A).

Based on these findings, Congress delineated the purposes of IDEA, as follows:

(1) (A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;

(B) to ensure that the rights of children with disabilities and parents of such children are protected; and

(2) to assist States in the implementation of a statewide, comprehensive, coordinated, multidisciplinary, interagency system of early intervention services for infants and toddlers with disabilities and their families;

(3) to ensure that educators and parents have the necessary tools to improve educational results for children with disabilities by supporting systemic- change activities; coordinated research and personnel preparation; coordinated technical assistance, dissemination, and support; and technology development and media services; and

(4) to assess, and ensure the effectiveness of, efforts to educate children with disabilities. [20 U.S.C.A. § 1400(d)(1)-(4).]

Congress has appropriated, and IDEA makes available, significant funding to states and local agencies in educating children with disabilities. Funding eligibility, however, is conditioned upon a state's compliance with the extensive goals and procedures established in the IDEA. 20 U.S.C.A. § 1412. A state is eligible for assistance under the IDEA if the state demonstrates that it "has in effect policies and procedures to ensure that it meets" the requirements of the IDEA, 20 U.S.C.A. § 1412(a), to, inter alia, ensure that a free appropriate public education (FAPE) is available to all children with disabilities, 20 U.S.C.A. § 1412(a)(1)(A); provide a full educational opportunity to all children with disabilities and a timetable for accomplishing that goal, 20 U.S.C.A. § 1412(a)(2); ensure the identification, location, and evaluation of children in need of special education and related services, 20 U.S.C.A. § 1412(a)(3)(A); ensure the development, review, and revision of an individualized education plan (IEP) for children with disabilities, 20 U.S.C.A. § 1412(a)(4); to the maximum extent, provide for the education of children with disabilities in the least restrictive environment (LEA), 20 U.S.C.A. § 1412(a)(5)(A); establish procedural safeguards for children with disabilities and their parents, 20 U.S.C.A. § 1412(a)(6); provide for the proper evaluation of children with disabilities, 20 U.S.C.A. § 1412(a)(7); and require the state educational agency (SEA) to examine data to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities, 20 U.S.C.A. § 1412(a)(22).

The IDEA requires state or local educational agencies to conduct a full and individual initial evaluation before the initial provision of special education and related services to a child with a disability, 20 U.S.C.A. § 1414(a)(1)(A), as well as periodic reevaluations. 20 U.S.C.A. §§ 1414(a)(2); 1414(b); 1414(c).

The LEA is required to provide notice to the parents of a child with a disability, "describ[ing] any evaluation procedures such agency proposes to conduct." 20 U.S.C.A. § 1414(b)(1). In conducting the evaluation, the LEA must use a variety of assessment tools and strategies, must refrain from using any single procedure as the sole criterion for the evaluation, and use technically sound instruments to assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. 20 U.S.C.A. § 1414(b)(2). Additionally, each LEA is required to apply certain criteria for the selection, use, and administering of tests used in the evaluative process, 20 U.S.C.A. § 1414(b)(3), and in the review of the evaluation data. 20 U.S.C.A. § 1414(c).

At the core of fulfilling the stated intent and purposes of the IDEA is the development, review, revision and implementation of an IEP that each SEA or LEA shall have in effect, at the beginning of each school year, for each child with a disability in its jurisdiction. 20 U.S.C.A. § 1414(d)(2)(A). The IEP must be developed by an individualized education program team (IEP team) composed of the parents of the child with a disability; at least one regular education teacher of the child, if the child is, or participates in, the regular education environment; at least one special education teacher of the child; where appropriate, at least one special education provider of the child; a qualified representative of the LEA; an individual who can interpret the instructional implications of evaluation results; at the discretion of the parent or agency, others who have knowledge or special expertise regarding the child; and, whenever appropriate, the child with a disability. 20 U.S.C.A. § 1414(d)(1)(B). The required components of the IEP are outlined in 20 U.S.C.A. § 1414(d)(1)(A).

The IDEA "also requires participating states to provide certain procedural safeguards for handicapped children and their parents." In re Adoptions of Amendments to N.J.A.C. 6:28-2.10, supra, 305 N.J. Super. at 395. The IDEA provides that:

Any State educational agency, State agency, or local educational agency that receives assistance under this subchapter shall establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education by such agencies. [20 U.S.C.A. § 1415(a).]

The procedures required to be established shall include, in pertinent part:

(1) an opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to such child, and to obtain an independent educational evaluation of the child;

(3) written prior notice to the parents of the child whenever such agency - -

(A) proposes to initiate or change; or

(B) refuses to initiate or change, the identification, evaluation, or educational placement of the child, in accordance with subsection (c) of this section, or the provision of a free appropriate public education to the child;

(4) procedures designed to ensure that the notice required by paragraph (3) is in the native language of the parents, unless it clearly is not feasible to do so; [and]

(6) an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate education to such child[.] [20 U.S.C.A. § 1415(b).]

The written prior notice to parents required by 20 U.S.C.A. § 1415(b)(3) "shall include a full explanation of the procedural safeguards, written in the native language of the parents, unless it clearly is not feasible to do so, and written in an easily understandable manner[.]" 20 U.S.C.A. § 1415(d)(2).

As authorized by the IDEA, the USDOE adopted comprehensive regulations, 34 C.F.R. § 300.1 to 300.756, implementing the IDEA, designed

(a) To ensure that all children with disabilities have available to them a free appropriate education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;

(b) To ensure that the rights of children with disabilities and their parents are protected;

(c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and

(d) To assess and ensure the effectiveness of efforts to educate children with dis- abilities. [34 C.F.R. § 300.1.]

III.The New Jersey Response

New Jersey's election to participate in the federal program to help finance the education of children with disabilities "is reflected in state statutes, N.J.S.A. 18A:46-1 to -46, and regulations, N.J.A.C. [now 6A:14-1.1 to -10.2]." Lascari, supra, 116 N.J. at 34. The New Jersey response to the requirements of the IDEA is primarily regulatory, designed to:

1. Ensure that all students with disabilities as defined in this chapter, including students with disabilities who have been suspended or expelled from school, have available to them a free, appropriate public education as that standard is set under the Individuals with Disabilities Act (IDEA) (20 U.S.C. §§ 1400 et seq.)[;]

2. Ensure that students with disabilities are educated in the least restrictive environment;

3. Ensure the provision of special education and related services;

4. Ensure that the rights of students with disabilities and their parents are protected;

5. Assist public and private agencies pro- viding educational services to students with disabilities; and

6. Ensure the evaluation of the effec- tiveness of the education of students with disabilities. [N.J.A.C. 6A:14-1.1(b).]

IV. Summary of the Challenges

All parties agree that the purposes and goals mandated in these federal and state enactments must be implemented and reflected in the New Jersey special education regulations. The issues in these appeals focus on whether the New Jersey regulatory response meets the IDEA mandatory standards in the process for determination of the eligibility of children with disabilities for services; the methods of evaluation of such children; the development of the IEP; the opportunities for parental participation; the availability of critical documents in the child's native language; the effect of student discipline on the delivery of services; the sufficiency of procedural safeguards; the adequacy of program effectiveness evaluation; and several other areas.

V. Standard of Review

An administrative regulation is accorded a presumption of validity, and the party challenging it bears the burden of establishing that the regulation is arbitrary, capricious, or unreasonable. New Jersey State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999). Moreover,

[i]f 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). [In re Repeal of N.J.A.C. 6:28, 204 N.J. Super. 158, 160-61 (App. Div. 1985).] See also In re Freshwater Wetlands Prot. Act Rules, 238 N.J. Super. 516, 526 (App. Div. 1989) ("[T]he legislative grant of authority 'is to be liberally construed to enable the agency to accomplish its statutory responsibilities.'" (quoting New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)); Medical Soc. of N.J. v. New Jersey Dep't of Law & Pub. Safety, 229 N.J. Super. 128, 134 (App. Div. 1988) (Regulations issued by an administrative agency are "cloaked with a presumption of legitimacy and should be sustained unless clearly ultra vires."), rev'd on other grounds, 120 N.J. 18 (1990).

However, "[a]n agency must, of course, act consistently with any applicable federal law, and its regulations, when a federal standard governs, must foster the federal policies." In re Adoption of Amendments to N.J.A.C. 6:28-2.10, supra, 305 N.J. Super. at 402; see also In re Repeal of N.J.A.C. 6:28, supra, 204 N.J. Super. at 163-64 (State regulations concerning education of handicapped must conform to federal funding legislation establishing standards for education of handicapped students); Eherenstorfer v. Division of Pub. Welfare, 196 N.J. Super. 405, 414-15 (App. Div. 1984) (The State must conform its Aid to Families with Dependent Children (AFDC) program to federal statutes and regulations); Monmouth County Bd. of Soc. Servs. v. A.B., 194 N.J. Super. 4, 6 (App. Div. 1984) ("A state that participates in an AFDC program must comply with federal statutes and federal regulations. A state regulation that conflicts with a federal standard is invalid under the supremacy clause."); Barrera v. Department of Insts. & Agencies, 150 N.J. Super. 41, 45 (App. Div. 1977) (State participation in federally supported categorical assistance programs is voluntary, but a state choosing to participate must comply with the terms of the federal legislation and regulations promulgated thereunder); Communications Workers of Am., AFL-CIO v. Union County Welfare Bd., 126 N.J. Super. 517, 525 (App. Div. 1974) (Regulation promulgated by the Department of Health, Education and Welfare pursuant to federal statute and that agency's interpretation of its own regulation constitute a mandate, which the state agency may not ignore).

In this opinion, we have affirmed the adoption of a majority of those special education regulations challenged by appellants. We have also declared several challenged regulations invalid, as violative of the IDEA, the federal special education regulations, or the New Jersey special education laws, and remanded the matter to the Commissioner and Board for the timely promulgation and adoption of curative regulations.

Although not raised by the parties, we are compelled to make certain observations and comments that are apparent to us. One of the stated purposes and intended results of the sweeping changes made to the Department's special education regulations was to provide more flexibility and discretion to local school districts in the determination of eligibility and evaluation of children with disabilities, and in the provision of special education and related services to those children. Additionally, in general, the standards established in New Jersey's current special education regulations are intended to meet, but not exceed, the federal special education standards, as promulgated by the IDEA and its federal regulations. In contrast, the pre-1998 version of New Jersey's special education regulations exceeded the required federal standards in several respects.

Although, within the scope of the current challenges posed by appellants and on this record, these approaches by the Commissioner and Board are generally permissible, we are concerned with the potential adverse consequences of the application of these reduced regulatory standards, and of the effect that the greater flexibility and wider discretion vested in local school districts, will have on the eligibility and evaluation determinations concerning children with disabilities in the poorer, "special- needs" school districts in our State, and the provision of special education and related services to those children.

Since 1970, our State has been entangled in a generational struggle in an "extraordinary effort to bring a thorough and efficient education to children in its poorest school districts." Abbott by Abbott v. Burke, 153 N.J. 480, 490 (1998) (Abbott V); see Robinson v. Cahill, 62 N.J. 473 (1973); Robinson v. Cahill, 63 N.J. 196, cert. denied, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973); Robinson v. Cahill, 69 N.J. 133, cert. denied, 423 U.S. 913, 96 S. Ct. 217, 46 L. Ed. 2d 141 (1975); Robinson v. Cahill, 69 N.J. 449 (1976); Robinson v. Cahill, 70 N.J. 155 (1976); Robinson v. Cahill, 70 N.J. 464 (1976); Abbott v. Burke, 100 N.J. 269 (1985) (Abbott I); Abbott v. Burke, 119 N.J. 287 (1990) (Abbott II) (identifying twenty-eight "special needs" school districts to which judicial remedies were applied); Abbott v. Burke, 136 N.J. 444 (1994) (Abbott III); Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV) (raising the total of the special needs school districts to thirty).

Although the Court concluded that its 1998 decision in Abbott V, supra, "should be the last major judicial involvement" in the effort to provide children in poorer school districts with a thorough and efficient education, 153 N.J. at 490, judicial intervention was, again, recently required to review implementation of court-mandated programs in the special need school districts. Abbott ex rel. Abbott v. Burke, 163 N.J. 95 (2000); see also Abbott ex rel. Abbott v. Burke, 164 N.J. 84, 88 (2000) (requiring the State to fund all of the costs of necessary facilities remediation and construction in the special needs school districts).

Although the effect of these revised special education regulations on children with disabilities in the special needs districts is not yet documented, it is our hope that the Commissioner and Board will not permit the reduced standards promulgated, and the delegation of more flexibility and discretion in local school districts, to create additional disparities between the quality of education received by children with disabilities in the special needs districts, as compared with that received by children with disabilities in the remainder of our State. We express this concern because of the past documented inability of the public schools in the special needs districts to provide equal opportunities for a thorough and efficient education to their students. In our view, this concern is heightened when attention is focused on our most vulnerable student population — children with disabilities. [For publication purposes, we have abridged the opinion in a manner that discusses only those regulations we have invalidated. Additionally, due to the elimination of a significant portion of the opinion by this abridgement, we have renumbered the topic headings contained herein.

As noted, we have concluded that with respect the majority of their challenges appellants have failed to sustain their burden of demonstrating that New Jersey's special education regulations, as adopted, are arbitrary, capricious or unreasonable, or are violative of the IDEA, the federal regulations, or New Jersey special education laws. Accordingly, in the area of "Eligibility Criteria," we have rejected appellants' challenges to N.J.A.C. 6A:14-3.5(c)(11)(iii) (use of statistical formulas as a tool in assessing the extent of a discrepancy between academic achievement and intellectual ability in evaluating whether a child has a specific learning disability (SLD)); N.J.A.C. 6A:14-3.5(c)(4) (definition of "communication impaired"); N.J.A.C. 6A:14-1.3 (definition of "student with a disability"); N.J.A.C. 6A:14- 3.9(a)(3) (eligibility for "speech-language services"); N.J.A.C. 6A:14-3.5(c)(12) (definition of "neurologically impaired"); and N.J.A.C. 6A:14-3.5(c)(8) (definition of "other health impairment").

In the area of "Evaluation Procedures," we have rejected appellants' challenges to N.J.A.C. 6A:14-2.4(b)(6) and 6A:14- 3.4(d)(1) (number of child study team members performing evaluations); N.J.A.C. 6A:14-3.4(h), 6A:14-3.5(c)(5) and 6A:14- 3.5(c)(12) (medical evaluations during initial evaluation); N.J.A.C. 6A:14-2.5 and 6A:14-3.4 (individualized basis of initial evaluation); N.J.A.C. 6A:14-3.4 and 6A:14-3.5(c)(4) (uniform standards for content of evaluations).

In the area of "Individualized Education Program (IEP) Requirements," we have rejected appellants' challenges to N.J.A.C. 6A:14-4.2(a)(8)(i) (reasonable accommodations to place children with disabilities in regular classroom); N.J.A.C. 6A:14-4.3(b) (basis for extended school year (ESY) services); N.J.A.C. 6A:14- 3.4(c) and 6A:14-3.7(a) (time frames for implementation of the IEP); and N.J.A.C. 6A:14-4.2 and 6A:14-1.3 (definitions of "least restrictive environment" (LRE), "special education," "related services," "free appropriate public education" (FAPE); and "supplementary aids and services").

Under the heading "Challenges to Parental Participation Provisions," we have rejected appellants' challenges to N.J.A.C. 6A:14-1.3 (definition of "native language"); N.J.A.C. 6A:14-2.4 and 6A:14-3.7(j) (provision of documents to parents in their native language); N.J.A.C. 6A:14-1.2 (notice and opportunity to participate in development of special education policy and procedure); N.J.A.C. 6A:14-2.3(i)(6) (parental participation in meetings); and N.J.A.C. 6A:14-1.3 (definition of "parent").

In the area of "Procedural Rights," we have rejected appellants' challenges to N.J.A.C. 6A:14-2.7(m) (emergency relief in discipline cases); and N.J.A.C. 6A:14-2.7(a) (due process hearing rights of adult students).

Under the heading "Children in Receiving Schools," we have rejected appellants' challenges to N.J.A.C. 6A:14-7 (education in the LRE); N.J.A.C. 6A:14-2.3(h) and 6A:14-7 (full access of parents to meetings); and N.J.A.C. 6A:14-7 (programs in receiving schools). In the area of "Program Administration," we have rejected appellants' challenges to N.J.A.C. 6A:14-1.1(b)(6) (evaluation of program effectiveness); and N.J.A.C. 6A:14-1.2(b)(13) (comprehensive system of professional development).

With respect to "Private Schools," we have rejected appellants' challenges to N.J.A.C. 6A:14-6.1(a)(1) (consultation with representatives of private schools); and N.J.A.C. 6A:14-6.1(b) (expenditures for private school children with disabilities). We now turn to an analysis of the those challenges we conclude have merit.]

VI. Provision of Evaluation Reports to Parents on a Timely Basis

Appellants argue:

BY FAILING TO MANDATE THAT EVALUATION REPORTS BE PROVIDED TO PARENTS IMMEDIATELY UPON THEIR COMPLETION, DOE'S REGULATIONS VIOLATE IDEA.

The IDEA provides, in pertinent part:

(b) Evaluation procedures

(4) Determination of eligibility

Upon completion of administration of tests and other evaluation materials - -

(B) a copy of the evaluation report and the documentation of determination of eligibility will be given to the parent. [20 U.S.C.A. § 1414(b)(4)(B) (emphasis added).]

Similarly, the federal special education regulations require that "[u]pon completing the administration of tests and other evaluation materials - - . . . *fn2 The public agency must provide a copy of the evaluation report and the documentation of ...


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