On appeal from a Final Decision of the State Board of Education, Docket Nos. 41-06, 42-06, 43-06.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Petitioner Lenape Regional High School District Board of Education (School Board or petitioner) appeals from an April 4, 2007 decision of the State Board of Education (agency or State Board), affirming a decision of the Commissioner of Education dismissing petitioner's appeal from a final investigation decision of the Office of Special Education Programs. We affirm.
The appeal before us presents one narrow issue: whether a school district may appeal to the Commissioner of Education from an investigation decision of the Office of Special Education Programs (OSEP). The two sub-issues are whether the agency has correctly construed the Department of Education's regulation, N.J.A.C. 6A:14-9.2(c), as giving OSEP authority to issue final decisions in these cases, and if so, whether the agency may lawfully delegate to OSEP the final decision-making authority.
The complicated procedural history of this case is set forth in detail in the June 27, 2006 initial decision of Administrative Law Judge Jeffrey Masin, and need not be repeated here. In brief, the parents of two students filed complaints against the School Board with OSEP, alleging violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. § 1400 et seq. OSEP resolved the complaints in the students' favor. The School Board sought to appeal the OSEP decisions to the Commissioner, who eventually transmitted the issue of her jurisdiction to the Office of Administrative Law (OAL) for an initial decision.*fn1 Judge Masin concluded that under the Department's regulations, OSEP was authorized to render a final decision on an IDEA complaint investigation, and that an administrative appeal to the Commissioner was not available.
The Commissioner adopted the initial decision and the State Board affirmed the Commissioner's decision.
The School Board's appellate brief does not identify any material disputes of fact requiring an evidentiary hearing, as to any of the OSEP complaint investigations. In its statement of facts, the School Board takes issue with the thoroughness of OSEP's investigations and with the conclusions OSEP drew from the investigations, but none of those contentions are developed in the legal argument section of its brief. Therefore, in deciding this appeal we will only address the jurisdictional issue and not the merits of OSEP's decisions.
We begin by briefly reviewing the purpose of the Individuals with Disabilities Education Act. As explained in Beth V. v. Carroll, 87 F.3d 80, 82 (3rd Cir. 1996), IDEA, originally enacted in 1970 as the Education of the Handicapped Act (EHA), Pub. L. No. 91-230, §§ 601-662, 84 Stat. 175, confers on disabled children a substantive right to a "free appropriate public education." 20 U.S.C. § 1400(c); that free appropriate education "consists of educational instruction specially designed to meet the unique needs of the [disabled] child, supported by such services as are necessary to permit the child 'to benefit' from the instruction. Under IDEA, a disabled student is entitled to an Individualized Education Plan (IEP), a specially tailored educational program detailing the student's present abilities, educational goals, and specific services designed to achieve those goals within a stated timeframe. See 20 U.S.C. § 1401(a)(20).
IDEA places on the states the primary responsibility for satisfying the goals of the statute. IDEA, described by several courts as a model of "cooperative federalism," authorizes federal funding for states providing the special education that the statute requires, but funding is contingent on state compliance with its array of substantive and procedural requirements, 20 U.S.C. § 1412.
[Id. at 82 (citations omitted).] See also In re Adoption of Amendments to N.J.A.C. 6:28-2.10, 305 N.J. Super. 389, 394 (App. Div. 1997).
In order to ensure the children's right to the educational benefits required by IDEA, the statute gives their parents two alternative means of seeking redress for violations of the statute. They can request a due process hearing, which entails a full-fledged adjudicatory proceeding, or they can file an administrative complaint with the designated state education agency, which must investigate and issue a decision within sixty days.*fn2 See 34 C.F.R. § 300.152.*fn3
[T]he current [federal] regulations, like the preceding regulations, require the state agency to have procedures for the receipt and resolution of such complaints and impose a time limit (60 days since 1980) for the state to carry out "an independent on-site investigation," if necessary, with an extension beyond the 60 calendar days, "only if exceptional circumstances exist with respect to a particular complaint." See, e.g., 300 C.F.R. § 330.661 (1995); 45 C.F.R. §§ 100b.780-.781 (1980). The current regulations not only require the state educational agency to conduct any necessary investigation of a complaint, but also require that the state's complaint resolution procedures permit complainants to submit additional information, and that the state educational agency review all relevant information and issue a written decision addressing all allegations. 34 C.F.R. § 300.661 (1995). The state educational agency must also adopt, where necessary, "procedures for effective implementation" of its final decisions, including "corrective actions to achieve compliance." § 300.661(c).
[Beth V. v. Carroll, supra, 87 F.3d at 82-83.] See also Lucht v. Molalla River Sch. Dist., 225 F.3d 1023, 1028-1029 (9th Cir. 2000), quoting Comment to CRP Regs., 64 Fed. Reg. 12406 (1999)("The [complaint resolution procedure of IDEA] is designed to provide 'parents and school districts with mechanisms that allow them to resolve differences without resort to more costly and litigious resolution through due process.'").
New Jersey has adopted a statute and regulations to comply with IDEA. "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].' The New Jersey response to the requirements of the IDEA is primarily regulatory." Baer v. Klagholz, 339 N.J. Super. 168, 189 (App. Div.)(quoting Lascari v. Board of Educ., 116 N.J. 30, 34 (1989)), certif. denied, 170 N.J. 84 (2001).
New Jersey's regulations designate OSEP, which is part of the State Department of Education (Department), as the entity to receive and investigate complaints under IDEA. See N.J.A.C. 6A:14-9.2. As required by the federal IDEA regulations, 34 C.F.R. § 300.152, OSEP must investigate and ...