Special Education

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Administrative Practice
Where special education cases include some claims within the special education law and some claims which are more properly part of a contested procedure the judge should carefully parse the claims and delineate which are reviewable by agency heads under the usual contested case procedure. Decision: 6 N.J.A.R. 360
Administrative law judges assigned to hear special education matters are not assigned pursuant to the Director of the Office of Administrative Law's contested case powers but under N.J.SA. 52:14F-15(o) which empowers ALJs to assist administrative agencies in .non-contested case proceedings. Decision: 6 N.J.A.R. 360
For the grant of emergency interim relief in a special education hearing, N.J.A. C. 1:6A-3.1(e) requires that a petitioner show: (1) the application has a reasonable probability of ultimately prevailing on the merits; (2) serious harm will result to the student, or the student's educational program will be seriously harmed if the relief is not granted; and, (3) the relief requested is narrowly defined and will not cause unreasonable expense or substantial inconvenience. While the "likelihood of success" test might be the general standard for emergency relief, the "stay put" provision of special education law took precedence over it and thus if the grant of emergency relief would restore the status quo, it should be granted regardless of the outcome of the "likelihood of success" test. Decision: 9 N.J.A.R. 159
Appropriate Education
Under the Education of All Handicapped Children Act, 20 U.S.C. 1401, et seq., a local board's obligation is to provide personalized instruction with sufficient support services to enable the handicapped child to benefit educationally from that instruction. The "basic floor of opportunity" provided by the act consists of access to specialized instruction and related services which are individually designed to provide educational benefits to the handicapped child. Decision: 9 N.J.A.R. 190
A local board of education need not provide the "best" education available but must provide a free, appropriate education, with personalized in- struction and sufficient support services to allow the child to benefit educationally. Decision: 9 N.J.A.R. 179
Extended School Year
Test for provision of an extended school year is not whether regression of a handicapped.student would exceed that of a non-handicapped student but rather whether the skills and behaviors provided by the educational program are required by the child and whether the lack of such assistance would result in the loss of any proficiency on the part of the child. Decision: 6 N.J.A.R. 096
Interim Relief
For the grant of emergency interim relief in a special education hearing, N.J.A.C. l:6A-3.1(e) requires that a petitioner show: (1) the application has a reasonable probability of ultimately prevailing on the merits; (2) serious harm will result to the student, or the student's educational program will be seriously harmed if the relief is not granted; and, (3) the relief requested is narrowly defined and will not cause unreasonable expense or substantial inconvenience. While the "likelihood of success" test might be the general standard for emergency relief, the "stay put" provision of special education law took precedence over it and thus if the grant of emergency relief would restore the status quo, it should be granted regardless of the outcome of the "likelihood of success" test. Decision: 9 N.J.A.R. 159
Least Restrictive Placement
Where a child in need of a special education program requires an intensive behavioral modification program all his waking hours, a residential placement would be the least restrictive placement. Decision: 5 N.J.A.R. 152
Multiple Handicap
Where it is impossible to determine which of a child's handicapping conditions is primary, a child may not be classified solely as emotionally disturbed but should be placed in a program for the multiply handicapped. Decision: 5 N.J.A.R. 152
Out-of-State Placement
N.J.S.A. 18A:46-14 requires that the Commissioner of Education's approval for the provision of educational services outside the state when, in the opinion of the legal board, such services cannot be provided within the state. When parents independently choose to enroll their child in an out-of-state residential school, they must absorb the cost. Decision: 9 N.J.A.R. 179
Primary Handicap
Where it is impossible to determine which of a child's handicapping conditions is primary, a child may not be classified solely as emotionally disturbed but should be placed in a program for the multiply handicapped. Decision: 5 N.J.A.R. 152
Psychotherapy
When psychotherapy includes counselling sessions it may be deemed to be a related service and thus the expenses relating to it may qualify for reim- bursement. Decision: 6 N.J.A.R. 096
Reimbursement of Expenses
A parent is entitled to reimbursement of special education expenses if the particular expense should not have been parental obligation. Decision: 6 N.J.A.R. 096
A jury trial need not be required on the question of reimbursement of residential expenses. Decision: 5 N.J.A.R. 152
N.J.S.A. 18A:46-14 requires that the Commissioner of Education's approval for the provision of educational services outside the state when, in the opinion of the legal board, such services cannot be provided within the state. When parents independently choose to enroll their child in an out-of-state residential school, they must absorb the cost. Decision: 9 N.J.A.R. 179
Related Service
A related service is a developmental, corrective or other support service which may be required to assist a handicapped child to benefit from special education services. Decision: 6 N.J.A.R. 096
Residential Placement
Where a child in need of a special education program requires an intensive behavioral modification program all his waking hours, a residential placement would be the least restrictive placement. Decision: 5 N.J.A.R. 152
Where both Federal and State regulations are silent on the topic it must be determined whether a child's residential placement was voluntary in order to determine who bears responsibility for the cost. Decision: 5 N.J.A.R. 152
N.J.S.A. 18A:46-14 requires the Commissioner of Education's approval for the provision of educational services outside the state when, in the opinion of the legal board, such services cannot be provided within the state. When parents independently choose to enroll their child in an out-of-state residential school, they must absorb the cost. Decision: 9 N.J.A.R. 179