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SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION A-7451-97T1 A-6273-99T1 NEW JERSEY PROTECTION & ADVOCACY, INC., STATEWIDE PARENT ADVOCACY Appellants, v. LEO KLAGHOLZ, Commissioner, Department of Education, and STATE BOARD OF EDUCATION, Respondents. Argued: December 12, 2000 - Decided: April 4, 2001
Before Judges Stern, Collester and Fall. On appeal from the promulgation of administrative regulations by the State Board of Education and the Commissioner of the Department of Education.
Summary of Rulings Our careful review of the record in the light of the oral and written arguments by the parties discloses that in the majority of the numerous challenges posed to the New Jersey special education regulations, appellants have failed to sustain their burden of demonstrating that the regulations violate the IDEA, the federal special education regulations, the New Jersey special education laws, or that they are arbitrary, capricious or unreasonable. However, we have concluded that appellants have sustained that burden in the following eight areas that will require the promulgation and adoption of new or amended regulations that comply with the federal mandates contained in the IDEA and its regulations: 1. N.J.A.C. 6A:14-3.5(a) must be amended or replaced to ensure that copies of evaluation reports, tests, materials, and other documentation of the eligibility are provided to parents within a reasonable time prior to the eligibility conference to facilitate the meaningful participation of parents and others they consult in the determination of eligibility; 2. N.J.A.C. 6A:14-3.7(d)(8) must be amended, or a regulation added, that will include a transition-services provision, as contained in the Department's prior regulation, N.J.A.C. 6:28- 4.7(b)(2), requiring assessments to determine appropriate post- secondary outcomes; 3. N.J.A.C. 6A:14-4.7(f) must be amended or replaced with a regulation that broadens the potential pool of community rehabilitation programs for secondary-level students to include those approved by agencies, in addition to the DVRS, similar to the provision contained in N.J.A.C. 6A:14-3.7(d)(9); 4. N.J.A.C. 6A:14-3.3(f) improperly limits the application of disciplinary procedural safeguards to only those potentially disabled students for whom it is determined that an evaluation for eligibility services is warranted. This regulation must be amended or replaced with a regulation that conforms to the broader protections afforded by 20 U.S.C.A. § 1415(k)(8)(A) and (B); 5. N.J.A.C. 6A:14-2.3(e)(7) must be amended or replaced by a regulation mandating that a copy of the procedural safeguards statement be disseminated at parent training and information centers, protection and advocacy centers, independent living centers, and other appropriate agencies; 6. N.J.A.C. 6A:14-2.2(d) must be amended or replaced with a regulation conforming with the requirements contained in 20 U.S.C.A. § 1415(b)(2) that excludes from consideration as a surrogate parent for a child with a disability, any employee of any public or nonpublic agency that is involved in the education or care of the child; 7. N.J.A.C. 6A:14-3.3 must be amended or replaced by a regulation that incorporates all of the "child find" provisions contained in 34 C.F.R. § 300.125; 8. N.J.A.C. 6A:14-3.4(f) must be amended, or a separate regulation promulgated and adopted, requiring that each IEP team member certify in writing whether their report reflects his or her conclusion and, if it does not, the dissenting IEP team member shall submit a separate statement presenting his or her conclusions. |