On appeal from the State Board of Education, Docket No. 53-00.
Before Judges Stern, Collester and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Enacted in 1990 and amended in 1997, the federal Individuals with Disabilities Education Act, 20 U.S.C.A. §§ 1400, et seq. ("IDEA"), sets forth a Congressional finding concerning"our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities[,]" and affirms that"[i]mproving educational results is an essential element" of federal policy. 20 U.S.C.A. § 1400(c)(1). Moreover, one of the statute's purposes is 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." 20 U.S.C.A. § 1400(d)(1)(A).
This appeal focuses on the financial responsibility entailed in furnishing one of those"related services," transportation, which as will appear, is a matter of state law. In particular, it presents for our resolution the issue of which school district must pay the transportation costs for a child with autism, when the child lives in a group home but attends school in another school district, and the parents reside in still another district. We review the action of the State Board of Education which, in consolidated cases involving two children with autism placed in the same group home, ruled that the responsible district is Delran Township, where the group home is located. Delran appeals, and we reverse.
The background of the proceedings is this. In September 1998, the Nutley Township Board of Education filed a petition with the Commissioner of Education seeking an order compelling the Delran Township Board of Education to pay the transportation costs for an autistic student, S.M., born in July 1982, who lived in a group home in Delran but attended a special school in Ocean Township. S.M.'s parent resided in Nutley.
The next month the Board of Education of the West Windsor-Plainsboro Regional School District ("WWP") filed a similar petition, seeking the same relief as to K.H., the autistic child of parents residing in the WWP district. K.H., who was born in December 1977, lived in the Delran group home and attended a special school in Princeton.
After both matters were consolidated for hearing in the Office of Administrative Law, on cross-motions for summary decision an administrative law judge ("ALJ") granted Delran's motion for summary dismissal of the petitions. The ALJ concluded that Delran was not responsible for paying the transportation costs for the two students living in the group home in its district, and that this responsibility belonged to the districts of residence of the students' parents, Nutley and WWP.
After Nutley and WWP filed exceptions with the Commissioner of Education, in a decision dated September 5, 2000, the Commissioner rejected the ALJ's recommendation and determined that Delran, as the district where the students' group home was located, was required to pay the students' transportation costs.
Delran appealed to the State Board of Education, which affirmed the Commissioner on April 8, 2002. The State Board took that action even though it disagreed with the Commissioner's conclusion, characterizing the conclusion as"inequitable" and based on outdated advice from the Attorney General, but concluding that the Board was"required to follow [the Attorney General's] advice."
Since about 1990, the Division of Developmental Disabilities ("DDD") within the Department of Human Services ("DHS") has been responsible for finding residential placements for both K.H. and S.M. In 1994 DDD moved both students to a group home in Delran, the Durand Academy Fox Chase Group Home. Until June 30, 1995, both received their educational services at the Center for Autistic Children in Willingboro, about two miles from Delran.
When the Willingboro center closed on June 30, 1995, the Office of Education within DHS arranged for K.H. to attend the Eden Institute in Princeton and for S.M. to attend the Search Day Program in Ocean Township. The students continued to live at the Delran group home, and the Office of Education paid for their tuition for and transportation to their respective day programs through the 1997-98 school year.
After receiving an opinion from its counsel in August 1998, Delran advised Nutley and WWP that it would not pay for transportation. This resulted in the present proceeding.*fn1
In its April 2002 decision, the State Board noted that in 1984 the Attorney General had issued a letter, referred to as administrative agency advice ("1984 AAA"), addressing the issue of responsibility for transportation costs. The State Board questioned the viability of that advice under current law and circumstances:
[I]t has become increasingly clear to us that it is inequitable to continue to impose the costs at issue exclusively on those school districts in which group homes happen to be located. This is especially true given that the number of children placed in such homes today is far greater than in 1984 and that the transportation costs are considerable because the educational placements of these children may be quite distant from the group home. Moreover, we cannot ignore that in contrast to the funding system in place in 1984 and to which the DAG specifically pointed in her 1984 memorandum, school districts are no longer entitled to be reimbursed by State aid for 90% of the costs of transporting these children from the group homes to their educational placements.
Nonetheless, the State Board considered itself bound by the 1984 AAA, which a Deputy Attorney General had issued in the name of then-Attorney General Irwin Kimmelman. The decision went on to state that
although the State Board of Education disagrees with the most recent advice from the Attorney General's Office sustaining the continued validity of the AAA provided to the Commissioner in 1984, the State Board, like the Commissioner, is required to follow that advice. We are ...