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  • Rakiah N. Bonjour, Esq.


In a recent decision, Garden Academy v. SM and EM on behalf of BM, the District Court for the District of New Jersey considered whether the Individuals with Disabilities Education Act (“IDEA”) authorizes a compensatory education award against a private special education school. The Court ultimately held that requirements of the IDEA are enforceable against private schools.

Garden Academy is a private special education school serving students with autism spectrum disorders. In 2007, B.M.’s first year at Garden Academy, his Individualized Education Program (“I.E.P.”) provided for home programming weekly to generalize his skills. In April 2008, the I.E.P. team developed an I.E.P. that provided for home visits: his teacher “came out more often,” sometimes up to three times a week.

In March 2009, the I.E.P. team revised the I.E.P. to contain a provision for “home-programming” at least once a week. Garden Academy “unilaterally ceased” the training at home and notified the parents that the “home-programming” component would take place at Garden Academy. Once home visits ceased, the parents sought services from an outside agency and presented the invoice to Garden Academy for the home programming costs that they incurred in the amount of $19,300.

The Director of Garden Academy attempted to terminate B.M.’s placement. B.M.’s parents opposed the termination, and after a failed mediation attempt, the matter went before the Office of the Administrative Law. The issue then became whether home services would be provided pursuant to the “stay put.” Under N.J.A.C. 6A:14-2.7(u), pending the outcome of an administrative or judicial proceeding, no change shall be made to the student’s program or placement unless or until the parties agree. During this process, Garden Academy did not provide any home programming.

The matter was transferred to an Administrative Law Judge, who considered the meaning of “home-programming.” The A.L.J. ultimately determined that B.M.’s I.E.P. included home visits and awarded the parents 223.6 hours of therapy services as compensatory education. Garden Academy filed an action in District Court seeking to reverse the A.L.J.’s decision. The parents counterclaimed seeking to uphold the decision and receive additional relief.

Garden Academy argued that the duty to implement IDEA’s mandates rested solely on public agencies, and a private entity had no obligation to ensure compliance with the IDEA or stay-put provisions. The Court disagreed, holding “where New Jersey's state educational agency has imposed heightened state educational standards on private schools compared to those imposed by the IDEA, those regulations are incorporated into the IDEA and enforceable against the private school.”

Despite other states’ district courts concluding that the IDEA does not apply to private schools because private schools are not a ‘State educational agency, State agency, or local educational agency, when applying the IDEA to private schools in New Jersey, the District of New Jersey found that New Jersey state law requires that all private schools comply with the IDEA. New Jersey's version of the “stay-put” rule and New Jersey's regulations create heightened educational standards enforceable against private schools in federal IDEA actions.

The District Court modified the parents’ award, ordering Garden Academy to reimburse the parents for $19,300 in out-of-pocket costs paid to an outside agency for home programming services. The IDEA does not limit the type of relief a court may order, so long as that relief is appropriate. Accordingly, and in finding that home programming was included as part of the stay-put, rather than award B.M., who at this point was an adult, 223.6 hours of compensatory education, the Court ordered monetary reimbursement.

Private education entities that receive placements from public school districts are also an obligation to comply with the regulations in affording a free and appropriate public education and procedural safeguards to its students. Entities not in compliance could face the same fate as Garden Academy, paying the cost of another agency to provide the educational services it should have provided in the first place.

This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to the attorney of your choice. Contact Rakiah Bonjour or Athina Cornell of Sciarrillo Cornell at


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