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In the Matter of L.S.

August 26, 2011

IN THE MATTER OF L.S., A DISABLED MINOR.


On appeal from the Division of Developmental Disabilities, Department of Human Services.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 9, 2011

Before Judges Waugh and Koblitz.

Appellants J.S. and T.S. are the parents of L.S., who was born at the end of 1997 and is currently thirteen years old.

L.S. has been diagnosed with autism. When he was nine years old and in-home therapeutic efforts had failed, L.S.'s parents filed a due process petition with the New Jersey Department of Education (DOE) seeking a residential placement for L.S., pursuant to N.J.A.C. 6A:14-2.7. The parents maintained that L.S. required a residential placement in order to benefit from and receive a free appropriate public education (FAPE). See 20 U.S.C.A. § 1400(d)(1)(A).

During a meeting with the DOE and the Rutherford Board of Education (Board), the Board suggested that the parents seek residential services from the New Jersey Division of Developmental Disabilities (DDD). The parents withdrew their DOE petition without prejudice and proceeded to deal exclusively with DDD.

DDD placed L.S. on an emergency basis in the Devereux Kanner Center (Devereux), a residential school in West Chester, Pennsylvania. DDD made the placement, pursuant to N.J.A.C. 10:46B-3.3, because of L.S.'s extremely aggressive behaviors. DDD determined that L.S.'s continued residence with his family endangered L.S. and other family members, especially his younger siblings. L.S. has remained at Devereux, returning to New Jersey for visits with his parents in Rutherford.

The Board agreed to pay approximately $170 per day for 226 days per year for L.S.'s daytime special education schooling at Devereux. Pursuant to N.J.A.C. 10:46D-3.2, DDD bills the parents approximately $2222 per month, based on their annual income of approximately $241,000. Appellants appealed the monthly charge, arguing that DDD should pay the entire cost because DDD is barred from obtaining reimbursement from parents when it places a child in an educationally necessary residential facility. DDD's final decision, dated August 31, 2010, upheld the parents' responsibility for their portion of L.S.'s costs incurred at Devereux. DDD made its decision on the papers, finding that a hearing at the Office of Administrative Law was unnecessary. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On appeal, the parents raise the following issues:

I. APPELLANTS' APPEAL OF THE DIVISION OF DEVELOPMENTAL DISABILITIES' IMPOSITION OF A PORTION OF THE COSTS OF [L.S.]'S RESIDENTIAL PLACEMENT IS A CONTESTED CASE THAT MUST BE TRANSMITTED TO THE OFFICE OF ADMINISTRATIVE LAW FOR HEARING AS A CONTESTED CASE

II. THE DIVISION OF DEVELOPMENTAL DISABILITIES IS FORECLOSED BY THE INDIVIDUALS WITH DISABILITIES EDUCATION IMPROVEMENT ACT FROM IMPOSING ANY COSTS AGAINST THE APPELLANTS FOR [L.S.]'S RESIDENTIAL PLACEMENT

III. SINCE MEDICAID FUNDS, THROUGH THE COMMUNITY CARE WAIVER, ARE BEING USED TO FUND [L.S.]'S PLACEMENT, THE DIVISION OF DEVELOPMENTAL DISABILITIES IS BARRED FROM ...


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