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In the Matter of L.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 SEEKING REIMBURSEMENT FROM [L.S.] OR HIS FAMILY

IV. THE DIVISION OF DEVELOPMENTAL DISABILITIES' EFFORTS TO IMPOSE A PORTION OF THE COSTS OF [L.S.]'S RESIDENTIAL PLACEMENT UPON APPELLANTS ARE ARBITRARY, CAPRICIOUS AND UNREASONABLE A "strong presumption of reasonableness must be accorded [to an] agency's exercise of its statutorily delegated duties." In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997).

The parents argue that DDD is required to comply with the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1492, which requires states to implement an interagency agreement so that a FAPE may be provided to all children without cost to the family. 20 U.S.C.A. § 1412(a)(12). DDD does not dispute L.S.'s entitlement to a FAPE, but argues that no interagency agreement is required in New Jersey because the local board of education is required to fund such a residential placement if a residential program is required to implement a FAPE for the particular child.

We agree with DDD's analysis and find persuasive Lawrence Township Board of Education v. New Jersey, No. 03-4073, 2004 U.S. Dist. LEXIS 28590, at *32-34 (D.N.J. Aug. 24, 2004), aff'd, 417 F.3d 368 (3d Cir. 2005). Because L.S.'s placement was implemented due to safety concerns about his in-home residence, DDD takes no position on whether L.S.'s placement was also required for educational reasons.

L.S.'s parents also argue that, because federal Medicaid funds were utilized by DDD in placing L.S., DDD may not recover its costs from them pursuant to the Medicaid Act. 42 U.S.C.A. § 1396p. DDD informed the parents that no federal funds were expended for L.S.'s placement as he was placed out of state.*fn1

Thus, we need not consider the parents' argument that the Medicaid Act prevents DDD from seeking reimbursement from L.S.'s parents.

The parents argue that they should not be required to return to the Board to seek payment for L.S.'s placement after having litigated this issue extensively with DDD. The parents choice of litigation strategy, however, does not persuade us that DDD has an obligation to provide complete funding for a DDD placement without contribution from the parents, even if the placement is required to provide a FAPE.

In New Jersey, the local school board is required to fund any placement necessary to provide a disabled child with a FAPE. See L.P. v. Edison Bd. of Educ., 265 N.J. Super. 266, 273 (App. Div. 1993); N.J.S.A. 18A:46-8; see also Lascari v. Bd. of Educ., 116 N.J. 30, 53-54 (1989). L.S.'s placement may well fit within that rubric. See, e.g., S.C. v. Deptford Twp. Bd. of Educ., 248 F. Supp. 2d 368, 379-80 (D.N.J. 2003). The record reflects that L.S. has exhibited the same violent, uncontrollable behaviors in school, such as biting teachers, as he has at home. At the time of his placement, L.S. had been suspended from two schools and was on the verge of a third suspension. However, the issue of the Board's responsibility must be determined in a proceeding between the parents and the Board.

Under New Jersey law, DDD has no obligation to pay for an educationally required placement, even if DDD makes the placement for other reasons. A contested hearing was not required in this case because no disputed issues of material fact existed. N.J.A.C. 10:46D-6.1(i); J.E. on Behalf of G.E. v. State, 131 N.J. 552, 565 (1993).

Affirmed.


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