Opinion
DOCKET NO. A-1626-14T4
02-04-2016
HADDON TOWNSHIP SCHOOL DISTRICT, Appellant, v. NEW JERSEY DEPARTMENT OF EDUCATION, Respondent.
Capehart & Scatchard, P.A., attorneys for appellant (Robert A. Muccilli, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kyle E. Gruber, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from New Jersey Department of Education, Office of Special Education Programs, No. 2015-21797. Capehart & Scatchard, P.A., attorneys for appellant (Robert A. Muccilli, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kyle E. Gruber, Deputy Attorney General, on the brief). PER CURIAM
Haddon Township School District appeals from the October 7, 2014 final determination of the Department of Education's Office of Special Education Programs (OSEP). In a complaint investigation report, the OSEP concluded that the parents of R.S., a sixth grade special needs student, were entitled to an independent educational evaluation pursuant to 34 C.F.R. § 300.502 (2016) before agreeing to the School District's planned Individualized Education Plan (IEP). The School District argues that the parents were not entitled to an evaluation pursuant to 34 C.F.R. § 300.502 because conducting an evaluation in these circumstances would have conflicted with the requirements of N.J.A.C. 6A:14-2.5(c). The School District also contends that the OSEP was arbitrary and capricious in finding 34 C.F.R. § 300.502 applicable. We disagree and affirm the OSEP's final determination.
We use initials to preserve the confidentiality of the child.
This federal regulation remains unchanged since 2006.
R.S. is eligible for special education and related services based on his classification as "Other Health Impaired." See N.J.A.C. 6A:14-3.5(c)(9). In February 2014, an IEP team conducted the triennial reevaluation of R.S.'s eligibility for services. See N.J.A.C. 6A:14-3.8(a). The IEP team ultimately determined R.S. was eligible for services and that no assessments were needed.
In June 2014, R.S.'s mother sent a letter to the School District stating that she disagreed with the proposed changes "made by the school district without consultation with the entire IEP team which include[d] the parents" and also requesting an independent functional behavioral assessment (FBA). In response, the School District sent a letter denying the FBA request. The School District explained that a parent may request an independent educational evaluation only if a disagreement exists "with any assessment conducted as part of an initial evaluation or reevaluation." According to the School District, because no initial evaluation or reevaluation was conducted, an assessment disagreement was not possible and R.S. was therefore not entitled to an independent evaluation.
After R.S.'s parents filed a complaint with the OSEP, the OSEP concluded that
The district's position, that the complainants were not entitled to an independent FBA because there was no assessment, does not comport with the requirements of 34 CFR §300.502, which permits a student's parent to request an independent evaluation when there is disagreement with an evaluation conduct by the district. Here, even though there were no formal assessments conducted as part of the triennial reevaluation, the student was evaluated and determined eligible for special education and related services through review of information provided by his teachers and related service providers. This review constitutes a reevaluation, and the parents are entitled to an independent evaluation pursuant to 34 CFR §300.502.
Our review of an administrative agency's fact-findings is limited. Lavezzi v. State, 219 N.J. 163, 172 (2014). We are bound to affirm an agency's determination if supported by substantial evidence, even if we question the wisdom of the decision or would "have reached a different result." In re Stallworth, 208 N.J. 182, 194-95 (2011). We should afford an administrative agency "a 'strong presumption of reasonableness'" for the "agency's exercise of its statutorily delegated responsibilities." Lavezzi, supra, 219 N.J. at 171 (quoting City of Newark v. Nat. Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). We will not upset an agency's ultimate determination unless the challenging party shows that the agency's decision "is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.
At the time of the OSEP decision, N.J.A.C. 6A:14-2.5(c) read as follows:
N.J.A.C. 6A:14-2.5(c) was recently revised to follow 34 C.F.R. § 300.502(b)(1): "Upon completion of an initial evaluation or reevaluation, a parent may request an independent evaluation if there is disagreement with the initial evaluation or a reevaluation provided by a district board of education. A parent shall be entitled to only one independent evaluation at public expense each time the district board of education conducts an initial evaluation or reevaluation with which the parent disagrees. The request for an independent evaluation shall specify the assessment(s) the parent is seeking as part of the independent evaluation request." See 4 6 N.J.R. 1996(a) (Oct. 6, 2014). --------
(c) A parent may request an independent evaluation if there is disagreement with any
assessment conducted as part of an initial evaluation or a reevaluation provided by a district board of education.
1. If a parent seeks an independent evaluation in an area not assessed as part of an initial evaluation or a reevaluation, the school district shall first have the opportunity to conduct the requested evaluation.
In contrast, 34 C.F.R. § 300.502(b)(1) stated:
[46 N.J.R. 1996(a) (Oct. 6, 2014) (emphasis added); see also N.J.A.C. 6A:14-2.5(c).]
(b) Parent right to evaluation at public expense.
(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.
This conflict between the federal and state regulations was brought to the attention of the School District on at least three occasions by way of guidance letters. On May 14, 2013, the New Jersey Department of Education sent a guidance letter to the School District advising them that,
[(Emphasis added).]
the [United States Department of Education] OSEP indicated that the current regulations contained in N.J.A.C. 6A:14-2.5(c)1 violate the [Independent Educational Evaluations (IEE)] provisions in 34 CFR §300.502.
. . . .
Therefore, please be aware that districts may no longer limit the parents' rights to an IEE by first conducting an assessment in an area not already assessed by the initial evaluation or reevaluation before the parents' request is granted. Rather, when a parental request for an independent evaluation is received, a district must provide the evaluation at no cost to the parent, unless the school district initiates a due process hearing . . . .
When, as here, "federal law and state law are not consistent, the state law must yield." Feldman v. Lederle Labs., 125 N.J. 117, 133-34 (1991), cert. denied, 505 U.S. 1219, 112 S. Ct. 3027, 120 L. Ed. 2d 898 (1992). "Conflict preemption occurs when . . . state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress . . . ." Id. at 135 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404, 85 L. Ed. 581, 587 (1941)).
The School District argues that these guidance letters are not binding on the School District because a change from an agency's prior position should be imposed through the rulemaking procedures of the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15. Our Supreme Court enunciated a list of six non-exclusive factors to determine whether an agency determination constitutes an administrative rule. See Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313, 331-32 (1984). Although the three guidance letters satisfied many, if not all, of the Metromedia factors, the OSEP's determination requiring an independent evaluation was in any event based on federal law and not merely an attempt to enforce guidance letters.
At the time of the OSEP decision, N.J.A.C. 6A:14-2.5(c) did not entitle a parent to an independent evaluation unless an initial evaluation or reevaluation had been conducted. However, 34 C.F.R. § 300.502(b)(1) entitled a parent to an independent educational evaluation if "the parent disagrees with an evaluation obtained by the public agency." In providing parents with a right to an independent educational evaluation, Congress intended that they "be given expanded opportunities to resolve their disagreements [with schools] in positive and constructive ways." See 20 U.S.C.A. § 1400(c)(8); 20 U.S.C.A. § 1415(b)(1); see also Schaffer v. Weast, 546 U.S. 49, 60-61, 126 S. Ct. 528, 536, 163 L. Ed. 2d 387, 398 (2005) (stating that the regulation clarifies the parents' right to an independent educational evaluation). The prior version of the state regulation frustrated Congress's intent by substantially limiting a parent's right to an independent educational evaluation. Because the OSEP must adhere to the conflicting federal regulation, R.S.'s parents are entitled to an independent evaluation. Feldman, supra, 125 N.J. at 133; Baer v. Klagholz, 339 N.J. Super. 168, 191 (App. Div.), certif. denied, 170 N.J. 84 (2001).
34 C.F.R. § 300.502 states that "[a] parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency." (Emphasis added). Relying on this language, the School District also seeks to define an evaluation as "something more than a review of data." The federal regulation does not support this interpretation. Evaluations are defined as procedures used "to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs." 34 C.F.R. § 300.15 (2016). Further, while the School District argues that the review of existing data is not an evaluation, the Code of Federal Regulations requires the review of existing data as part of an initial evaluation or reevaluation:
(a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation under this part, the IEP Team and other qualified professionals, as appropriate, must--
(1) Review existing evaluation data on the child, including--
(i) Evaluations and information provided by the parents of the child;
(ii) Current classroom-based, local, or State assessments, and classroom-based observations; and
(iii) Observations by teachers and related services providers . . . .
[34 C.F.R. § 300.305 (2016) (emphasis added).]
Data was reviewed as part of the triennial reevaluation of R.S. to determine the extent of special education services that were necessary and appropriate. The School District's characterization of what occurred as an "eligibility determination" is unsupported by the federal regulations.
The ruling that R.S.'s parents were entitled to an independent evaluation pursuant to 34 C.F.R. § 300.502 was neither arbitrary nor capricious and was supported by substantial credible evidence in the record.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION