Adoption of Amendments to N.J.A.C. 6:28-2.10, 3.6 and 4.3, Matter of

• Decision Date: 13 November 1997
• Parties: , 122 Ed. Law Rep. 733 In the Matter of the ADOPTION OF AMENDMENTS TO N.J.A.C. 6:28-2.10, 3.6 AND 4.3.
• Court: New Jersey Superior Court — Appellate Division

Page 389

305 N.J.Super. 389

702 A.2d 838, 122 Ed. Law Rep. 733

In the Matter of the ADOPTION OF AMENDMENTS TO N.J.A.C.

6:28-2.10, 3.6 AND 4.3.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 21, 1997.

Decided Nov. 13, 1997.

Nancy E. Faccone, Staff Attorney, for appellant New Jersey Protection and Advocacy, Inc. (Linda D. Headley, of counsel, Ms. Faccone, on the brief).

Geraldine Callahan, Deputy Attorney General, for respondent State Board of Education (Peter Verniero, Attorney General, attorney; Michael J. Haas, Senior Deputy Attorney General, of counsel; Ms. Callahan, on the brief).

Before Judges CONLEY, WALLACE and CARCHMAN.

The opinion of the court was delivered by

CONLEY, J.A.D.

This appeal involves a particular provision of the Department of Education's regulations governing handicapped children, specifically N.J.A.C. 6:28-3.6(d)(5)(xv). Pursuant to that regulation, the individualized education program each local district must develop for a handicapped child must include in its description of the child's education program "any specialized equipment and materials" necessary. In contrast, the governing federal statutes, the Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to -1485, amended by Pub.L. No. 105-17, § 601 to -657, 111 Stat. 37 (1997) ( 20 U.S.C.A. §§ 1400 to -1491(o) (1997)) ¹, and the Technology-Related Assistance for Individuals with Disabilities Act, (Technology Act), 29 U.S.C.A. §§ 2201 to -2288, require as part of a child's education program consideration of "assistive technology devices" and "assistive technology services" as defined in the IDEA and Technology Act. Plaintiff, New Jersey Protection and Advocacy, Inc., contends that the terminology the State regulation uses is different from and, facially at least, more narrow than the federal terminology and therefore is invalid. We agree.

I

Before we discuss the applicable federal and State law, some background in connection with the present dispute between the parties may be helpful. On April 4, 1994, the Department published proposed amendments to N.J.A.C. 6:28-2.10, 3.6 and 4.3, including the amendment to N.J.A.C. 6:28-3.6(d)(5)(xv) specifically at issue in this matter. 26 N.J.R. 1422, 1423 (April 4, 1994). As proposed, N.J.A.C. 6:28-3.6(d)(5)(xv) would require that the individualized education program (IEP) of a child with a disability must include "any specialized equipment or materials" necessary to ensure that the child receives a free appropriate public education (FAPE) as required by IDEA. See 20 U.S.C.A. § 1400(c), amended by Pub.L. No 107-17, § 601(d)(1)(A), 111 Stat. 42 (1997) (20 U.S.C.A. § 1400(d)(1)(a) (1997)); 20 U.S.C.A. § 1412(1), (2)(A)(i), amended by Pub.L. No. 105-07, § 612(a)(1), 111 Stat. 60 (1997) ( 20 U.S.C.A. § 1412(a)(1)(1997)). Prior to the amendment, N.J.A.C. 6:28-3.6(d)(5)(xv) provided that the child study team need only include any specialized equipment. During the regulatory process on this proposed amendment, the Department was requested to specifically incorporate the federal terms "assistive technology, services and training" into N.J.A.C. 6:28-6(d)(5)(xv). By letter dated May 2, 1994, Deborah Bain, chairperson of the Technology Assistive Resource Program (TARP), pointed out that the purpose of the Technology Act was to "expand the availability of assistive technology services and devices to individuals with disabilities." TARP recommended that the Department amend N.J.A.C. 6:28-3.6(d)(5)(xv) to specifically include these common federal terms to facilitate greater understanding and effective communication between and among departments and provide consumers with a broader spectrum of equipment and services options.

In addition, on May 4, 1994, the New Jersey Department of the Public Advocate, Division of Advocacy for the Developmentally Disabled (DADD), plaintiff's predecessor agency, also submitted comments to the proposed amendments. DADD expressed concern that the federal terms "assistive technology devices" and "assistive technology services" were not specifically identified as items the local school districts would be required to consider and to provide to qualified students through the IEP planning process. DADD recommended that the Department revise the proposed amendments to include "assistive technology devices" and "assistive technology services" as items required for consideration during the IEP planning process.

In response, the Department determined that the proposed amendment should only modify "specialized equipment" to include "specialized materials" 26 N.J.R. 2787 (July 5, 1994). In rejecting the requests to use the federal terminology, the Department stated that it "believes that assistive technology [was] included in specialized equipment and materials. In addition, assistive technology [including environmental adaptations] is referenced at N.J.A.C. 6:28-4.2(a)(1)(v) under program options. Therefore, the Department believes that the issue is addressed in regulation." 26 N.J.R. 2787-88. And so the Department adopted the proposed amendment without the federal terminology. This appeal ensued.

II

The IDEA (formerly the Education of All Handicapped Children Act (EAHCA)), provides federal money to assist states and local agencies in educating handicapped children. Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690, 695-96 (1982). Receipt of those funds is conditioned on a participating state's compliance with the IDEA's goals and requirements. Lascari v. Board of Educ., Ramapo Indian Hills Reg'l Sch. Dist., 116 N.J. 30, 33-34, 560 A.2d 1180 (1989); see also Hendrick Hudson Dist. Bd. of Educ. v. Rowley, supra, 458 U.S. at 180-81, 102 S.Ct. at 3037-38, 73 L.Ed.2d at 696. New Jersey has elected to participate in the federal program. As such, it has enacted legislation, N.J.S.A. 18A:46-1 to -46, and adopted regulations, N.J.A.C. 6:28-1.1 to -12.1, that assure all handicapped children the right to a free appropriate public education (FAPE) as required by the IDEA. N.J.A.C. 6:28-1.1(b)(1).

The IDEA mandates that a handicapped child's FAPE must be "tailored to the unique needs of [that] handicapped child through an 'individualized education program' (IEP)," and reviewed annually. Lascari v. Board of Educ. of Ramapo Indian Hills Reg'l High Sch. Dist., supra, 116 N.J. at 34, 560 A.2d 1180 (citing 20 U.S.C.A. § 1414(a)(5)). Consistent with the federal requirements, the Department's regulations require the local school districts to take the lead and to develop an appropriate IEP for each handicapped child. N.J.S.A. 18A:46-8; N.J.A.C. 6:28-3.6(a). The Department's regulations detail the educational goals and objectives to be included in the IEP and the action needed to meet them. N.J.A.C. 6:28-3.6. And each district must provide educational programs and related services in accordance with the IEPs. N.J.A.C. 6:28-4.1.

The Department's regulatory scheme provides for the initial evaluation and classification of a child by a "child-study team," which consists of a school psychologist, a learning disabilities teacher-consultant, and a school social worker. N.J.A.C. 6:28-3.1(b); N.J.A.C. 6:28-1.3. The child-study team determines whether a child is eligible for special education; it also develops, monitors, and evaluates the child's IEP. N.J.A.C. 6:28-3.1(a). Parents must be involved in the development of the IEP. 20 U.S.C.A. § 1412(7)(A), amended by Pub.L. No. 105-17, § 614(d)(1)(A)(viii)(II), 111 Stat. 85 (1997) (20 U.S.C.A. § 1414(d)(1)(A)(viii)(II) (1997)); 20 U.S.C.A. § 1414(a)(1)(C)(iii), amended by Pub.L. No. 105-17, § 614(a)(1)(C)(i), 111 Stat. 81 (1997) (20 U.S.C.A. § 1414(a)(1)(C)(i) (1997)); 20 U.S.C.A. § 1414(a)(5), amended by Pub.L. No. 105-17, § 614(c)(3), (4)(A), 111 Stat. 83 (1997); (20 U.S.C.A. § 1414(c)(3), (4)(A) (1997)); § 614(d)(1)(B)(i), 111 Stat. 85 (1997); (20 U.S.C.A. § 1414(d)(1)(B)(i) (1997)); 34 C.F.R. § 300.345; N.J.A.C. 6:28-2.3(e); N.J.A.C. 6:28-3.6(b), (c).

The federal law also requires participating states to provide certain procedural safeguards for handicapped children and their parents. 20 U.S.C.A. § 1415(a)-(e), § 1415(b)(1), amended by Pub.L. No. 105-17, § 615, 111 Stat. 88 (1997) (20 U.S.C.A. § 1415 (1997)). The minimum procedures mandated include parental access to relevant school records, notice to parents of any proposed change in a child's educational placement, and the right to present complaints related to the child's placement or provision of free appropriate education. 20 U.S.C.A. § 1415(b)(1)(A), (C), (E), amended by Pub.L. No. 105-17, § 615(b)(1), (b)(3), (b)(6), 111 Stat. 88 (1997) (20 U.S.C.A. § 1415(b)(1), (b)(3), (b)(6) (1997)). When a dispute arises between the board and the parents, either party has the right to resolve the matter through mediation and, thereafter, an "impartial due process hearing." 20 U.S.C.A. § 1415(b)(2), amended by Pub.L. No. 105-17, § 615(b)(5), § 615(e), § 615(f), 111 Stat. 88, 90, 91 (1997) (20 U.S.C.A. § 1415(b)(5), 1415(e), 1415(f) (1997)). Under the New Jersey regulations, when parents of a handicapped child are dissatisfied with his or her education, they have the right to request a mediation conference, N.J.A.C. 6:28-2.6, or to request a due-process hearing, N.J.A.C. 6:28-2.7. A party aggrieved by the due process hearing may bring a civil action in State or federal court. 20 U.S.C.A. § 1415(e)(2), amended by Pub.L. No. 105-17, § 615(i)(2)(A), 111 Stat. 92 (1997) (20 U.S.C.A § 1415(i)(2)(A) (1997)). ² Of course, to fully utilize these procedural safeguards, the parents must know, or be able to readily ascertain, the available special education options.

A handicapped child in New Jersey, then, is entitled to a panoply of rights conferred under the IDEA, its implementing regulations, 34 C.F.R. §§ 300.1 to -754 ³, and the corresponding state statutes governing special education, N.J.S.A. 18A:46-1 to -46, and...