On appeal from the New Jersey Department of Education, Office of Special Education, Complaint No. C2012-4341.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 25, 2012
Before Judges Yannotti, Harris and Hoffman.
The Board of Education of the Borough of Fair Lawn (district) appeals from a final determination of the New Jersey Department of Education, Office of Special Education (OSE), which determined that the district was required by N.J.A.C. 6A:14-4.8 to provide T.S. with no fewer than ten hours per week of home instruction by a certified teacher. We affirm.
We briefly summarize the relevant facts. T.S. was born on November 28, 2007. He has a neo-natal encephalopathy with severely compromised post-natal growth and neurological development. Because of his brain defect, T.S. has poor temperature regulation and must be in an environment that is 77 degrees Fahrenheit or higher so that his core body temperature remains about 96.5 degrees.
When T.S. became three years of age, the district became responsible for providing him with an appropriate public education. In November 2010, The district prepared an Individualized Education Program (IEP) for T.S. for the 2010-2011 school year. Among other things, the IEP provided that T.S. would receive five hours of home instruction per week by a certified teacher, along with five hours of related services.
By letter dated November 23, 2010, T.S.'s parents, F.S. and S.S., objected to the IEP. They disputed the district's decision to limit T.S.'s instruction and therapeutic services to ten hours per week. The district replied in a letter dated December 3, 2010, which stated that the Child Study Team had determined that the IEP provided an appropriate educational program for T.S.
In June 2011, an IEP for T.S. was developed for the 2011-2012 school year. The IEP identified T.S. as a preschool student with a disability. The IEP stated that T.S. would receive five hours of home instruction per week, with an additional six hours of related home services. T.S.'s parents again objected to the IEP.
On July 20, 2011, T.S.'s parents submitted a complaint to the OSE, stating that the IEP failed to provide T.S. with ten hours of home instruction as required by N.J.A.C. 6A:14-4.8(a)(4). T.S.'s parents additionally maintained that they had been improperly excluded from IEP meetings and discussions, and the district had not provided them with evaluation reports for T.S. in a timely manner.
On September 26, 2011, the OSE issued its complaint investigation report. The OSE stated that the district was required to provide T.S. with ten hours of instruction by a certified teacher each week pursuant to N.J.A.C. 6A:14-4.8. The OSE noted that N.J.A.C. 6A:14-4.8 applies when a student with a disability requires a "free, appropriate public education" and "all other less restrictive program options have been considered and determined inappropriate." The OSE stated:
Here, the student has a disabling condition that requires home instruction to assure a free, appropriate public education. The IEP team made the determination that home instruction was appropriate for the entire school year, well over [thirty] consecutive school days. Due to the unique circumstances of this child, the only available special education placement at this time is home instruction. Therefore, in order to provide a free, appropriate public education, the district must deliver services in accordance with [N.J.A.C.] 6A:14-4.8.
The OSE also determined that T.S.'s parents had not been improperly excluded from IEP meetings and discussions. In addition, the OSE found that the district had timely provided T.S.'s parents with T.S.'s evaluation reports.*fn1 The OSE ordered the district to submit a corrective action plan addressing the noncompliance with the regulatory requirements by October 15, 2011.
By letter dated October 12, 2011, the district asked the OSE to reconsider its determination that T.S. was entitled to ten hours of home instruction per week. The district asserted that N.J.A.C. 6A:16-10.1 applies here because T.S. was receiving home instruction due to a "temporary or chronic health condition." The district also asserted that the speech, occupational and physical therapies provided to T.S. were education and, if N.J.A.C. 6A:14-4.8 applies, should be counted towards the ten hours of instruction required by that regulation. The OSE issued a letter dated October 19, 2011, which ...