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New Jersey Department of Education Complaint

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 11, 2012

NEW JERSEY DEPARTMENT OF EDUCATION COMPLAINT INVESTIGATION C2012-4341.

On appeal from the New Jersey Department of Education, Office of Special Education, Complaint No. C2012-4341.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 stated that the district's request for reconsideration was untimely because it had not been submitted within the time required by N.J.A.C. 6A:14-19.2(c)(1).

On December 5, 2011, the district filed an application with the OSE to hold the corrective action in abeyance pending an appeal from the OSE's decision. By letter dated December 6, 2011, the OSE denied the application. The district then moved before us for a stay of the OSE's decision. We denied the motion.

On appeal, the district argues that: (1) T.S.'s home instruction is governed by N.J.A.C. 6A:16-10.1 rather than N.J.A.C. 6A:14-4.8; (2) the district is providing a sufficient number of hours of home instruction, even if N.J.S.A. 6A:14-4.8 applies; and (3) the OSE exceeded its authority by investigating the complaint submitted by T.S.'s parents and ordering corrective action.

We have carefully considered the record and conclude that the district's arguments are without merit. We therefore affirm the OSE's final determination substantially for the reasons stated in the OSE's September 26, 2011 complaint investigation report. We add the following comments.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006). An agency's decision may not be disturbed unless shown to be arbitrary, capricious or unreasonable. Id. at 16 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). We grant agency action "a 'strong presumption of reasonableness.'" Ibid. (quoting Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980)). Furthermore, we "must defer to an agency's expertise and superior knowledge of a particular field.'" Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1491, grants disabled children the right to a "free[,] appropriate public education." 20 U.S.C.A. § 1412. The IDEA confers the primary obligation for meeting the goals of the statute upon the states. Bd. of Educ. of the Lenape Reg'l High Sc. Dist. v. N.J. Dep't of Educ., 399 N.J. Super. 595, 598 (App. Div. 2008) (citing Beth V. v. Carroll, 87 F.3d 80, 82 (3d Cir. 1996)). "New Jersey has adopted a statute and regulations to comply with the IDEA." Id. at 600.

N.J.A.C. 6A:14-4.8 governs the provision of a "free[,] appropriate public education" to students with a disability. The regulation provides in pertinent part:

(a) A student with a disability shall have his or her IEP implemented through one to one instruction at home or in another appropriate setting when it can be documented that all other less restrictive program options have been considered and have been determined inappropriate.

4. Instruction shall be provided for no fewer than 10 hours per week. The 10 hours of instruction per week shall be accomplished in no fewer than three visits by a certified teacher or teachers on at least three separate days.

5. Instruction shall be provided at a location conducive to providing educational services, taking into consideration the student's disability and any unique circumstances. The parent shall be consulted in determining the appropriate location for the provision of home instruction. [Ibid.]

In addition, N.J.A.C. 6A:16-10.1 governs the provision of instruction to a student with a temporary or chronic health condition when the student is confined at home or another outof-school setting. The regulation provides in pertinent part:

(a) The district board of education shall provide instructional services to an enrolled student whether a general education student in kindergarten through grade 12 or special education student age three to 21, at the student's home or another suitable out-of-school setting such as a hospital or rehabilitation program when the student is confined to the home or another out-of-school setting due to a temporary or chronic health condition or a need for treatment which precludes participation in [his or her] usual education setting, whether general education or special education.

(c) the home or out-of-school instruction shall meet the following miminim standards:

2. The teacher providing instruction shall be appropriately certified for the subject, grade level and special needs of the student pursuant to [N.J.A.C.] 6A:9, Professional Licensure and Standards.

3. The teacher shall provide one-on-one instruction for no fewer than five hours per week on three separate days of the week and, if the student is physically able, no fewer than five hours per week of additional guided learning experiences that may include the use of technology to provide audio and visual connections to the student's classroom.

4. For a student with disabilities, the home instruction shall be consistent with the student's [IEP] to the extent appropriate and shall meet the Core Curriculum Content Standards pursuant to [N.J.A.C.] 6A:8, Standards and Assessment. When the provision of home instruction will exceed 30 consecutive school days in a school year, the IEP team shall convene a meeting to review and, if appropriate, revise the student's IEP.

Here, the OSE determined that T.S.'s home instruction is governed by N.J.A.C. 6A:14-4.8 rather than N.J.A.C. 6A:16-10.1 because T.S. requires home instruction as a result of a disability rather than a "chronic medical condition." The record supports that determination. T.S.'s occupational therapist noted that the child is on home instruction because of a "severe" autonomic dysregulation with a temperature instability, which may never resolve. An increase or decrease in temperature could be very dangerous for [T.S.]. He presently needs to be in an environment that is kept at a constant 77 degrees to maintain an internal temperature of between 96.5 - 98 degrees, and home seemed to be the most controlled/ controllable environment.

The district maintains that T.S. requires home instruction because of a "chronic health condition" and therefore only is entitled to the instructional services required by N.J.A.C. 6A:16-10.1(c). However, as we have explained, T.S.'s poor temperature regulation is due to a disability, specifically his brain defect.

While N.J.A.C. 6A:16-10.1(a) may apply when a student requires home instruction due to a "chronic health condition" that is unrelated to any disability, the OSE reasonably concluded that N.J.A.C. 6A:14-4.8 applies where, as here, the student's condition is due to a disability. We therefore conclude that the OSE correctly determined that T.S. is entitled to ten hours of instruction by a certified teacher, as required by in N.J.A.C. 6A:14-4.8.

The district additionally contends that N.J.A.C. 6A:14-4.8 does not apply in this case because all other less restrictive program options have not been considered and deemed inappropriate. The district states that T.S. was initially placed at the Children's Therapy Center and removed from that program because of medical concerns, not because the program was deemed inappropriate. However, as the record indicates, the Children's Therapy Center program was deemed inappropriate because that program could not meet T.S.'s need for temperature stability.

The district alternatively argues that if N.J.A.C. 6A:14-4.8 applies, it is nevertheless providing T.S. with a sufficient number of hours of instruction each week to meet the requirements of that regulation. The district contends that T.S. receives five hours of one-to-one instruction per week, along with six hours of additional guided learning and occupational and physical therapies. This contention fails because N.J.S.A. 6A:14-4.8 requires ten hours of home instruction each week by a "certified teacher." T.S. is only receiving five hours of instruction per week by a "certified teacher."

The district additionally argues the OSE exceeded its regulatory authority by investigating the complaint submitted by T.S.'s parents and ordering the district to comply with N.J.A.C. 6A:14-4.8. The district maintains the OSE is limited to considering so-called procedural complaints, not alleged violations of the substantive rights of a disabled student. The district contends that if a disabled student's parents raise an issue as to the substantive component of the student's education, the dispute must be submitted to an administrative law judge for a hearing.

The OSE has authority to investigate a complaint alleging a violation of the special education rules and regulations. N.J.A.C. 6A:14-9.2. T.S.'s parents filed a complaint in which they claimed the district was not complying with N.J.A.C. 6A:14-4.8 because it was not providing T.S. the required number of hours of instruction per week. The complaint raised no issue as to the substantive content of the instruction provided to T.S. We are therefore satisfied that the OSE had authority to investigate the complaint and order compliance with the applicable regulation.

Affirmed.


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