NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2013
On appeal from the Department of Human Services, Division of Medical Assistance and Health Services, Docket Nos. HMA 888-08, EDU 889-08, and TPP 2462-08.
Schwartz, Simon, Edelstein & Celso, attorneys for appellant (Stephen J. Edelstein, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Department of Human Services, Division of Medical Assistance and Health Services (Melissa A. Raksa, Assistant Attorney General, of counsel; Vicki A. Mangiaracina, Deputy Attorney General, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondents Department of Education and Department of the Treasury, joins in the brief of respondent Department of Human Services, Division of Medical Assistance and Health Services.
Before Judges Parrillo, Harris, and Guadagno.
Petitioner Lakewood Board of Education (Board) appeals from a final agency decision (FAD) of the New Jersey Division of Medical Assistance and Health Services (DMAHS), dated May 20, 2010, adopting the decision of an administrative law judge (ALJ), dismissing petitioner's claim for Medicaid reimbursement for services rendered to special education students parentally placed in non-public schools. The Board also appeals from the decision of the New Jersey Department of Education (DOE), dated July 15, 2010, finding no additional issues for DOE's jurisdiction, and the deemed adoption of the FAD by the Department of Treasury (Treasury). We affirm.
The Individuals with Disabilities Education Act (IDEA) was enacted by Congress to ensure that all children with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C.A. § 1400(d)(1)(A). The IDEA provides federal funding to state and local agencies to assist in the education of disabled children. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295, 126 S.Ct. 2455, 2458, 165 L.Ed.2d 526, 533 (2006). To receive federal funding, states "must comply with federal requirements designed to provide a [FAPE] for all disabled children." Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 198 (3d Cir. 2004) (citing 20 U.S.C.A. § 1412(a)(1)). As a recipient of such funding, New Jersey has enacted legislation, N.J.S.A. 18A:46-1 to -54, and regulations, N.J.A.C. 6A:14-1.1 to -10.2, to fulfill the IDEA's requirements.
Participating states provide a FAPE to a disabled child through an individualized education program (IEP), which is developed collaboratively by the child's parents, teachers, and local school officials. 20 U.S.C.A. §§ 1414(d)(1), 1401(14), 1412(a)(4). The IEP is the "centerpiece" of the IDEA's system for delivering education to disabled children. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 598, 98 L.Ed.2d 686, 699 (1988). It includes a specific statement of a student's present abilities, goals for improvement, services designed to meet those goals, and a timetable for reaching them. 20 U.S.C.A. § 1414(d)(1)(A)(i).
New Jersey's regulations related to implementing IEPs follow federal requirements. D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 n.1 (3d Cir. 2010). The child study team (CST), which is composed of a school psychologist, a learning disabilities teacher-consultant, and a school social worker, evaluates the child and determines his or her eligibility for special education and related services. N.J.A.C. 6A:14-3.1. Within thirty days of this determination, the CST must meet to develop an IEP. N.J.A.C. 6A:14-3.7. The IEP is reviewed at least annually, see 20 U.S.C.A. § 1414(d)(4)(A)(i); N.J.A.C. 6A:14-3.7; and the child's eligibility for special education is reevaluated at least once every three years, 20 U.S.C.A. § 1414(a)(2)(B); N.J.A.C. 6A:14-3.8(a). If the CST determines that the child's educational needs can be met in a public school environment, the child is entitled to all of the substantive and procedural guarantees of the IDEA. See 20 U.S.C.A. § 1412(a)(1)(A).
Public schools in New Jersey are free to persons over five and under twenty years of age. N.J.S.A. 18A:38-1; N.J.A.C. 6A:22-3.1(a). But "[i]f a parent of a disabled child chooses to forego the public school services, the student is not entitled to the same level of service as a public school student." Moorestown Twp. Bd. of Educ. v. S.D., 811 F.Supp.2d 1057, 1066 (D.N.J. 2011). "No parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school." 34 C.F.R. § 300.137(a). "The more limited services provided to parentally-placed children in private schools is commonly known as 'equitable participation.'" Moorestown, supra, 811 F.Supp.2d at 1066. ...