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Out-of-District Placement Not Required to Utilize Aides Preferred by Sending District

By on October 5, 2016 in Special Education/504 with 1 Comment

In Trenton Board of Education v. Mercer County Special Services School District, OAL DKT. NO. EDU 16465-15, AGENCY DKT. NO. 306-10/15 (Sept. 20, 2016), the Trenton Board of Education (“Trenton”) sought to supply individual aides through a contracted vendor for its special education students who are placed out-of-district at the Mercer County Special Services School District (“Special Services”), rather than rely on Special Services to hire and provide the aides. Trenton believed it could provide the aides at a less expensive rate than Special Services. However, the New Jersey Commissioner of Education, who affirmed the Administrative Law Judge’s decision, rejected Trenton’s arguments and ruled in favor of Special Services.

Placing special education students at out-of-district educational placements is generally costly, but it is necessary when the school district cannot provide an appropriate program for that student within the school district. Trenton attempted to mitigate the cost of sending students to Special Services by requiring Special Services to utilize the individual aides employed by Trenton through a contracted vendor for the special education students who are placed at Special Services and who require such an aide. Unfortunately for Trenton, the Commissioner held that Trenton was prohibited from mandating Special Services to use the aides selected and hired by Trenton.

Specifically, the Commissioner reasoned that there is no legal authority mandating that a receiving school district and/or out-of-district placement (Special Services) accept the aides selected by the sending school district (Trenton). The Commissioner cited to N.J.A.C. 6A:23A-17.1(e)(5)(viii), which considers individual aides as “extraordinary services” for which a district board of education may bill directly. The Commissioner also noted that Trenton and Special Services had a history of entering into one contract for tuition costs and another contract for the cost of individual aides for students placed at Special Services by Trenton. The Commissioner further reasoned that although Trenton, as the sending district, maintains responsibility for the provision of services and ensures compliance with a student’s individualized education program, it does not maintain the power to employ or appoint the individual aide who would service the child at the placement.

Boards of education are constantly strategizing and developing ways in which they can provide an appropriate education to students with disabilities in a cost efficient manner.  However, once a student is placed out-of-district, the board of education cannot require the receiving school district to utilize their preferred contracted vendor and/or employee.



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About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.


There is 1 Brilliant Comment

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  1. As always, excellent summation of the case.

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