Item CS tudent Residency by EQ7Al75w

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									                           STATE BOARD OF EDUCATION
                             ADMINISTRATIVE CODE
                            COMMENT/RESPONSE FORM

This comment and response form pertains to the July 15, 2009 State Board of Education
meeting, when the draft regulations were reviewed at Proposal Level, to the public
testimony session held on September 16, 2009, and to the 60-day comment period which
ended on December 4, 2009, following publication of the proposed rules in the New
Jersey Register.

Topic: Student Residency                    Meeting Date:         December 16, 2009

Code Citation: N.J.A.C. 6A:22               Level:                Adoption

Division: Field Services                    Completed by:         Division of Field
                                            Services

Summary of Comments and Agency Responses:

No comments were offered at the July 15, 2009 State Board meeting, nor was there any
public testimony on the draft regulations at the September 16, 2009 public testimony
session. The following summarizes the written comments received following publication
in the Register, and the Department’s responses. Each commenter is identified at the end
of the comment by a number, which corresponds to the following list:

   1. Elizabeth Athos, Esq.
      Education Law Center

   2. Joseph Jones, III, Superintendent, Woodbury City Public School District
      President, Gloucester County Superintendents’ Roundtable

   3. Michael Vrancik, Director, Governmental Relations
      New Jersey School Boards Association




                                           1
GENERAL

    1. COMMENT: The commenter supported the proposed readoption of the
    Student Residency regulations and agreed with most of the Department’s
    proposed amendments, but asked for consideration in two areas of concern as
    noted below. The commenter further reminded the Department that the Sample
    Forms, Notices, and Informational Documents it has provided in conjunction with
    this chapter will require updating consistent with adopted amendments. (1)

    RESPONSE: The department thanks the commenter for supporting the proposed
    readoption and notes that it fully intends to update the associated package of
    materials to reflect all adopted amendments.

SUBCHAPTER 1

    2. COMMENT:             The commenter stated that the proposed definition of
    “guardian” appears to exceed statutory provisions, which do not equate a custody
    order with parenthood or guardianship for the purpose of establishing domicile.
    The commenter recommended that the State Board reject recent school law
    decisions holding that the motives of a person obtaining custody are not
    determinative and that the custody order must be accepted on its face, since such
    holdings undermine the purpose and spirit of the “affidavit” pupil statute, N.J.S.A.
    18A:38-1(b) – which requires that the parent or guardian must provide a sworn
    statement that “the child is not residing with the resident of the district solely for
    the purpose of receiving a free public education within the district.” By equating
    an order of custody with one of guardianship for the purpose of establishing
    domicile, the commenter continued, the proposed code promotes a practice of
    “school shopping” whereby a resident can easily obtain a custody order and
    thereby bypass the criteria of N.J.S.A. 18A:38-1(b). The commenter pointed out
    that while the Department has stated that it sees no reason to distinguish between
    legal custody and guardianship, N.J.S.A. 18A:38-1(b)(2) speaks to “parent or
    guardian” and does not contemplate that a non-parent should be on the same
    footing as a parent in absence of a guardianship. The commenter recommended
    that the regulations require a review of the reasons for the custody order to ensure
    that is has not been obtained to attend the schools of a particular district. (3)

    RESPONSE: The Department does not agree. In contemporary practice, the
    terms “custody” and “custodian” – rather than the older “guardianship” and
    “guardian” as used in the statute, which dates from 1903 – are used to denote the
    official placement, by order of a court of competent jurisdiction, of a child into
    the physical and/or legal care and control of a designated individual other than the
    parent. The Department’s proposed definition is consistent with the Legislature’s
    distinguishing of students under the care of a parent or court-ordered surrogate
    from students who are merely living with a person other than such parent or
    surrogate, and with its concomitant imposition of additional “affidavit”
    requirements on the latter. The Department further believes that the awarding of



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    custody is a matter of family law and that, once a court of competent jurisdiction
    has made its determination as to the appropriate arrangement for care and control
    of a child, the court’s judgment should not be subject to further scrutiny for
    purposes of determining a child’s entitlement to attend school in a district – with
    the proviso, as clearly stated in the proposed rule, that orders of residential
    custody may be challenged where there is evidence that the child is not actually
    living with the designated custodian.

SUBCHAPTER 3

    3. COMMENT: The commenter inquired about the provision at N.J.A.C. 6A:22-
    3.1 stating that “[a] home is permanent when the parent or guardian intends to
    return to it when absent and has no present intent of moving from it,
    notwithstanding the existence of homes or residences elsewhere.”              The
    commenter asked if there is a time limit beyond which a home ceases to become
    permanent if the parent or guardian is absent from said home, and if so, how long
    an absence from the permanent home must there be? (3)

    RESPONSE: The Department believes that such determinations will differ based
    on the particular facts and circumstances of a situation, and that it is neither
    possible nor appropriate to hold parties to a specific, uniform time frame in
    matters of this type.


    4. COMMENT: The commenter inquired about the Department’s intent in
    deleting the language “or written agreement between the parents” at N.J.A.C.
    6A:22 -3.1(a)1i and elsewhere. The commenter sought confirmation that
    elimination of this language means that, when parents live in different districts,
    they cannot simply decide between themselves (as the former language implies)
    which district will be responsible for educating the child, but rather must have the
    designation reduced to a court order; otherwise the responsible district will be that
    of the parent with whom the child resides for the majority of the school year. (3)
    Another commenter objected to the proposed deletion of this same langauge,
    contending that, pursuant to Roxbury Township Board of Educ. v. West Milford
    Board of Educ., 283 N.J. Super. 505, 521-22 (App. Div. 1995), as long as
    divorced parents have “a united intent” to establish a district as their child’s
    domicile, their decision is “determinative if reasonable and based on good faith
    considerations” and there is no reason to require them to obtain a court order
    memorializing their agreement. The commenter further stated that such deletion
    is inconsistent with other provisions in the chapter allowing for attendance in the
    district of the parent or guardian’s domicile when the child is actually living with
    someone other than the parent or guardian. (1)

    RESPONSE: In proposing this amendment, the Department absolutely did not
    intend to remove the ability of separated parents domiciled in different school
    districts to decide between themselves as to the district in which their child(ren)



                                         3
will attend school. Rather, it sought to have the document reflecting such choice
exhibit a degree of formality so as to minimize the potential, in a discordant
situation, for one parent to present a falsified “agreement” without the knowledge
or consent of the other. Because such situations can be dealt with on a case-by-
case basis, and in light of the erroneous impression created by the proposed
amendment as reflected in the comments received, the Department recommends
withdrawal of such amendment and readoption of the existing language.

5. COMMENT: The commenter stated that the proposed new language at
N.J.A.C. 6A:22 -3.1(a)1iii, “Where a student is living with a person other than a
parent or guardian, nothing herein is intended to limit the student’s entitlement to
attend schools in the parent or guardian’s district of domicile pursuant to the
provisions of the chapter” is too expansive an interpretation, providing the
student a choice of districts not clearly permitted by statute. The commenter
supported “an expedited hearing process to determine a student’s entitlement to a
free education where such entitlement is a matter of dispute” and requested that
“if the Commissioner fails to render a decision in a timely fashion, the State
should reimburse the cost of tuition to the district and assume the rights of the
district against the parents/guardians for tuition reimbursement.” (3)

Another commenter asserted that the proposed rule – particularly in light of the
chapter’s new requirement for “liberal construction” – could drastically impact
municipal tax structures and undermine the widely valued concept of the “home-
town” school by allowing children and parents to “pick” a school district and
claim entitlement to attend by having the child live with a friend or relative. The
commenter presented the following scenarios:

      A child could be “kicked-out” of a home and sent to a relative or friend in
       another town and permitted to attend the school district serving the town
       in which he/she is now domiciled.
      Parents/guardians could move (even out of state) and leave behind a child
       with a friend or relative so that the child could finish out his/her schooling
       in a New Jersey community of their choice.
      A family’s ability to manipulate the location where the child is domiciled
       (with a friend or relative) for the purpose of gaining athletic advantage is
       greatly enhanced.
      Parents focused on the issue of class rank, in isolation or in concert with
       the New Jersey STARS program, could utilize this more liberal allowance
       for residency determination to move a child into a district where the child
       will have a more favorable rank in the graduating class. (2)

RESPONSE: With respect to N.J.A.C. 6A:22-3.1(a)1iii and similar provisions
elsewhere in the chapter, the Department does not agree that reaffirming a
student’s right to attend school in the district of his or her legal domicile expands
the statute by providing choices not intended by the Legislature; rather, it
reiterates the most fundamental entitlement of N.J.S.A. 18A:38-1. The examples


                                     4
cited by the second commenter would not result from this provision, since such
examples assume that the child would be found domiciled in the friend or
relative’s district, when, in fact, a child’s domicile follows that of the parent or
guardian. Also, the referenced requirement for liberal construction is not new; it
has been in the rules since their inception, although at a different location within
the chapter, and is not intended – nor has it ever been applied – to create an
entitlement where none exists.

With respect to “timely” decisions, the Department notes that residency disputes
are required by law to be – and, in fact are – heard on an expedited basis, and that
there is no statutory authority for rules requiring State reimbursement of tuition or
State assumption of tuition claims against litigants.

6. COMMENT: The commenter requested clarification of N.J.A.C. 6A:22-
3.1(a)1ii(1), providing a means of determining domicile in cases of shared
physical custody where the student resides with neither parent for the majority of
the school year, asking whether the district of attendance designated by that
provision is also the district that bears the cost of educating the student. The
commenter also recommended that this section address the situation where
parents who live in two different districts have shared equal custody of a student
for a number of years, such that the district of domicile cannot be determined by
looking at either the prior or subsequent October 16 dates. The commenter stated
that the courts (Cumberland Reg. Bd. of Ed. v. Freehold Reg. Bd. of Ed., No.07-
3110, 2008 U.S. App. Lexis 20636 (3rd Cir. Sept. 29, 2008) (Relying on
Somerville Bd. of Ed. v. Manville Bd. of Ed., 332 N.J. Super. 6 (App. Div. 2000),
aff’d, 167 N.J. 55 (2001)) have suggested that, in some cases, the districts should
share the cost. (3)

RESPONSE: Like the underlying statute, the rules in this chapter do not
distinguish between a child’s entitlement to attend school and the financial
responsibility for his or her education; therefore, unless a different statute controls
– such as N.J.S.A. 18A:7B-12 for students in State facilities or 18A:7B-12.1 for
homeless students – the district where a student is entitled to attend school will
generally bear the cost of educating the student. The Department recognizes,
however, that, under certain circumstances where the parents of a child in an out-
of-district residential placement are domiciled in different districts, it may not be
possible – even after applying all the rules of the chapter – to determine the
domicile of the child for purposes of assigning financial responsibility. To make
this recognition explicit and take account of applicable case law, the Department
suggests the addition of language at N.J.A.C. 6A:22-3.1(a)1ii as follows:

       *(2) Where the domicile of a student with disabilities as defined
       in N.J.A.C. 6A:14 cannot be determined pursuant to this
       section, nothing herein shall preclude an equitable
       determination of shared responsibility for the cost of such
       student’s out-of-district placement.*



                                      5
7. COMMENT: The commenter requested a clear definition of the term
“reasonable period of time” in the provisions at N.J.A.C. 6A:22-3.1(a)3 regarding
guardianship of students coming from outside the state, recommending that the
Department specify 14 days following expiration of the mandatory six-month
waiting period of state residency. The commenter also recommended that the
Department provide for removal of the student where guardianship application is
denied. (3)

RESPONSE:          The Department believes that such determinations will differ
based on the particular facts and circumstances of a situation, and that it is neither
possible nor appropriate to hold parties to a specific, uniform time frame in
matters of this type. The Department also believes that the potential for removal
of a student where guardianship is not obtained is implicit in the rule, but will
suggest language as follows to make it explicit:

              3. A student is domiciled in the school district when the
       student has come from outside the State and is living with a person
       domiciled in the district who will be applying for [legal]
       guardianship of the student upon expiration of the six-month
       "waiting period" of State residency required pursuant to N.J.S.A.
       2A:34-30(e) and 2A:34-31. However, any such student may later
       be subject to removal proceedings if application for [legal]
       guardianship is not made within a reasonable period of time
       following expiration of the mandatory waiting period*, or if
       guardianship is applied for and denied*.

8. COMMENT: With regard to N.J.A.C. 6A:22-3.1(c), the commenter asked for
additional clarification as to what is meant, for purposes of establishing a
student’s eligibility to attend school in a district that is not the parent’s domicile,
by a parent “temporarily residing in the district.” The commenter recommended
that language be added indicating that the burden is on the parent to establish that
a temporary residence is not maintained just so a child can attend school in the
district, and listing some types of proofs that may be presented to boards of
education in this regard. The commenter also inquired as to whether there are any
limitations on allowing a parent to choose between the district of domicile and the
temporary residence; for example, if a family decides to live in its shore (second)
home during April and May each year, may the student attend school there for
those two months? (3)

RESPONSE: The Department believes that such determinations will differ based
on the particular facts and circumstances of a situation, and that it is neither
possible nor appropriate to establish uniform regulatory criteria in matters of this
type. The Department also notes that both current and proposed rules provide
that, where required by the district board of education, the parent or guardian shall




                                      6
demonstrate that the temporary residence is not solely for purposes of a student’s
attending school within the school district of temporary residence.

9. COMMENT: With regard to N.J.A.C. 6A:22-3.2(a), the commenter objected
to insertion of the phrase “[I]f the student’s parent or guardian elects to exercise
such entitlement” into the “affidavit” student rule. The commenter states that the
phrase is unnecessary because a separate regulation, N.J.A.C. 6A:22-3.1(c ),
makes clear that the parent always has the right to elect the admission of his or her
child to the district of his or her domicile over any other basis for which the
student is qualified to attend school, and the requirement for filing by the parent
of an “affidavit” student of a sworn statement that he or she is not capable of
supporting or providing care for the student due to family or economic hardship
and that the student is not residing with the other person solely for the purpose of
receiving a free public education, serves to confirm that the parent is not electing
to have the student attend school in the district of the parent’s domicile. The
commenter fears that the proposed “elects to exercise” language could be
mistakenly interpreted by school districts as creating another documentation
hurdle that must be satisfied before “affidavit” student eligibility is granted. (1)

RESPONSE: The Department proposed this language solely to stress, within the
body of the specific rules governing “affidavit” students, that students are not
precluded from attending school in their district of domicile notwithstanding that
they meet statutory “affidavit” criteria. However, the commenter is correct that
the language is not actually necessary in this context, and the Department will
therefore suggest, in the interest of avoiding possible confusion or
misinterpretation, that the readopted rule not include the proposed language.

10. COMMENT: The commenter recommended clarification of N.J.A.C. 6A:22-
3.2(f), which provides for attendance, pursuant to N.J.S.A. 18A:38-3(b), by the
child of a member of the New Jersey National Guard or the United States reserves
who has been ordered to active service in time of war or national emergency.
Specifically, the commenter seeks clarification that this provision involves
attendance in the district where a student was resident just prior to relocation to a
different district due to the parent’s active military service. The commenter also
asked the Department to specify within this provision that, pursuant to N.J.S.A.
18A:38-3(b), the district has no obligation to pay transportation for such a student.
(3)

RESPONSE: The Department agrees that the section would be made clearer by
incorporating the pertinent language of the underlying statute:

           (f) A student over five and under 20 years of age pursuant to
       N.J.S.A. 18A:38-1, or such younger or older student as is
       otherwise entitled by law to free public education, is eligible to
       attend school in the school district pursuant to N.J.S.A. 18A:38-
       3(b) if the student had previously resided in the district and if the



                                     7
           parent or guardian is a member of the New Jersey National Guard
           or the United States reserves and has been ordered to active service
           in time of war or national emergency*, resulting in the relocation
           of the student out of the district. A school district admitting a
           student pursuant to N.J.S.A. 18A:38-3(b) shall not be obligated
           for transportation costs*.

    11. COMMENT: The commenter stated that the language of N.J.A.C. 6A:22-
    3.4(a) requiring acceptance of “a combination of any of the following or similar
    forms of documentation” suggests that a board of education must take whatever
    two items are offered as proof of a student’s eligibility for enrollment. The
    commenter recommends that additional language be included to make it clear that
    a board has the discretion to establish through policy a requirement for three or
    more types of items, especially if the integrity of some of the offered documents
    appears questionable. (3)

    RESPONSE: Nothing in the current or proposed rules suggests that boards are
    limited to requesting only two forms of documentation; indeed, the rules
    contemplate that both districts and applicants will be afforded flexibility in the
    submission and review of documentation, provided that a board does not deny
    enrollment based solely on an applicant’s failure to provide one particular form of
    documentation, or a particular subset of documents, without regard to other
    evidence of eligibility presented.

SUBCHAPTER 4

    12. COMMENT: The commenter objected to the “unduly defer attendance”
    provision at N.J.A.C. 6A:22-4.1(b), stating that without a prescribed timeframe
    for the prompt scheduling of application appointments, the “unduly defer
    attendance” standard will be subject to abuse and students will miss unnecessary
    days from school. The commenter recommended that the rules require the
    scheduling of appointments on the same day that the applicant first seeks
    admission or, in limited circumstances, by no later than the next business day. (1)

    RESPONSE: The Department is reluctant to establish a specific, uniform time
    frame for scheduling of application appointments because what is reasonable in
    this regard will vary under different circumstances – for instance, a single mid-
    year applicant versus large influxes during periods of heavy enrollment activity,
    or a very small district versus a very large one. The Department believes that the
    rule as it stands is sufficiently clear to place districts on notice that they are
    obliged to process applications as quickly as possible and that, even when activity
    is heavy, they must make the necessary arrangements for prompt, efficient review
    and may not schedule application appointments sparsely or over a protracted
    period of time. The Department stresses that any applicant who believes a district
    is taking longer than necessary to provide an appointment may contact the office
    of the appropriate Executive County Superintendent for assistance.



                                         8
   13. COMMENT: With regard to N.J.A.C. 6A:22-4.1(b)1i and ii, the commenter
   stated that for purposes of establishing a student’s domicile with a non-parent, a
   custody order should not be given the same status as an order of guardianship.
   Rather, the regulations should require a review of the reasons for the custody
   order to ensure it has not been obtained in order to enable the child to attend the
   schools of a district. The commenter asserted that the statute itself (N.J.S.A.
   18A:38-1(b)(2)) speaks to “parent or guardian” and does not contemplate that a
   non-parent should be on the same legal standing as a parent, unless the non-parent
   is a guardian. (3)

   RESPONSE: The Department does not agree. As stated above, in contemporary
   practice, the terms “custody” and “custodian” – rather than the older
   “guardianship” and “guardian” as used in the statute, which dates from 1903 – are
   used to denote the official placement, by order of a court of competent
   jurisdiction, of a child into the physical and/or legal care and control of a
   designated individual other than the parent. The Department’s proposed definition
   is consistent with the Legislature’s distinguishing of students under the care of a
   parent or court-ordered surrogate from students who are merely living with a
   person other than such parent or surrogate, and with its concomitant imposition of
   additional “affidavit” requirements on the latter. The Department further believes
   that the awarding of custody is a matter of family law and that, once a court of
   competent jurisdiction has made its determination as to the appropriate
   arrangement for care and control of a child, the court’s judgment should not be
   subject to further scrutiny for purposes of determining a child’s entitlement to
   attend school in a district – with the proviso, as clearly stated in the proposed rule,
   that orders of residential custody may be challenged where there is evidence that
   the child is not actually living with the designated custodian.

   14. COMMENT: The commenter recommends that the Department indicate, at
   N.J.A.C. 6A:22-4.2(a) and elsewhere as appropriate, that the referenced sample
   forms and informational documents are accessible on the Department’s website.
   (3)

    RESPONSE: The Department agrees and will add the necessary references as
follows:

      6A:22-4.1       Registration forms and procedures for initial
      assessment

          (a)   Each district board of education shall use registration forms
      provided         by          the          Commissioner              *(at
      http://www.state.nj.us/education/code/current/title6a/chap22sampl
      e.pdf                           (PDF)                               and
      http://www.state.nj.us/education/code/current/title6a/chap22sampl
      e.doc (Word))*, or locally developed forms that: (no further changes)



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6A:22-4.2 Notices of ineligibility

    (a) Where an applicant is found ineligible to attend the schools of
the district pursuant to this chapter, or the application initially
submitted is found to be deficient upon subsequent review or
investigation, notice shall immediately be provided to the applicant
consistent with sample form(s) to be provided by the Commissioner
*(at
http://www.state.nj.us/education/code/current/title6a/chap22sampl
e.pdf                           (PDF)                              and
http://www.state.nj.us/education/code/current/title6a/chap22sampl
e.doc (Word))* and meeting the requirements of this section.

    (b) Notices of ineligibility shall include:
        1. – 2. (No change.)
        3. A clear statement of the applicant’s right to appeal to the
Commissioner within 21 days of the date of the notice, along with an
informational document to be provided by the Commissioner *(at
http://www.state.nj.us/education/code/current/title6a/chap22sampl
e.pdf                              (PDF)                          and
http://www.state.nj.us/education/code/current/title6a/chap22sampl
e.doc (Word))* describing how to file an appeal;




                                10
                                                                    Adoption Level
                                                                    December 16, 2009




TO:                            Members, State Board of Education

FROM:                          Lucille E. Davy
                               Commissioner

SUBJECT:                       N.J.A.C. 6A:22, Student Residency

REASON FOR ACTION:             Sunset Readoption with Amendments

SUNSET DATE OF
CURRENT CHAPTER:               September 10, 2009

PROJECTED SUNSET
DATE OF NEW CHAPTER: September 10, 2014


                                        Summary

               The Department of Education is proposing to readopt N.J.A.C. 6A:22,
Student Residency, with amendments. The chapter will expire on September 10, 2009
and must be readopted pursuant to N.J.S.A. 52:14B-5.1(c). Amendments are proposed
for clarity and currency, and to reflect the holdings of recent relevant case law. Upon
readoption, the proposed rules will expire on September 10, 2014.

                In accordance with the New Jersey State Constitution, Article VIII,
Section IV, Paragraph 1, the Legislature established a system of free public schools for
all children in the State. Through N.J.S.A. 18A:38-1, the Legislature provided for
students to attend school in a particular district based upon domicile, residency or so-
called “affidavit student” status (living with and supported by a person other than the
parent or guardian for reasons not related to attending school). Effective January 1994,
the Legislature substantially amended the statute to strengthen the criteria for “affidavit
student” status, and to provide a new framework for determining student eligibility. The
revised enactment sought to strike a balance between the right of students to a free public
education and the need of local districts to ensure that persons attending school within
their jurisdictions were, in fact, entitled to do so under the statute. The Legislature
accomplished this by providing that students would be able to attend school in the district



                                            11
where they claimed to be domiciled or otherwise eligible for attendance under the statute,
but also permitting a board of education to remove any student it believed to be ineligible
following a 21-day period during which the board’s determination could be appealed to
the Commissioner of Education. Then, if such an appeal were filed, the board could not
remove the student from school during the pendency of proceedings before the
Commissioner, but the Commissioner could assess tuition for the entire time of the
student’s ineligible attendance if the petitioner did not prevail on appeal.
                In the years subsequent to the 1994 amendment, experience proved
implementing regulations necessary to effectuate the provisions of the statute in a fair and
consistent manner. The Department had been made aware, through literally hundreds of
county office interventions, contested cases, and telephone and letter inquiries, that many
districts did not recognize the right of students to attend school pending local district
review of their eligibility and during the subsequent period for appeal to the
Commissioner; that unreasonable or inappropriate degrees and forms of documentation
were being demanded; that certain considerations, such as immigration or housing status,
were improperly entering into district determinations of residency or domicile; and that
the notices provided to parents/guardians/residents following local board determinations
to deny eligibility were not always sufficiently informative to applicants regarding their
rights and responsibilities following such denial. Conversely, parents frequently did not
recognize a district’s right to investigate their claims of residency or domicile and
conduct periodic reassessments or re-registrations of enrolled students, or their obligation
to pay tuition for attendance in the district while investigations or appeals are pending, if
the student is ultimately found ineligible for enrollment. The difficulties inherent in
attempting to apply the amended statute without implementing rules were also recognized
by the Appellate Division of the Superior Court, which, in J.A. v. South Orange and
Maplewood Bd. of Ed., 318 N.J. Super. 512 (App. Div. 1999), expressly recommended
adoption of such rules.

               In response to this demonstrated need, a process of discussion and
comment was initiated in the fall of 2000, culminating in the November 2001 adoption by
the State Board of Education of N.J.A.C. 6A:28-2, Subchapter 2, Entitlement to Attend
School Based on Domicile/Residency in the District. In September of 2004, these rules
were readopted with amendments based on further experience and developments in law,
and additionally recodified as the separate chapter (N.J.A.C. 6A:22, Student Residency)
now proposed for readoption. From their inception, the implementing rules for N.J.S.A.
18A:38-1 have sought to maintain the balance intended by the statute, deterring attempts
to attend school in a particular district where there is no lawful entitlement to do so, while
recognizing as paramount a student’s right to free public education. In so doing, the rules
serve the Mission Statement and Strategic Plan of the State Board of Education by
providing for access by all New Jersey students to a public school system offering the
learning opportunities that will allow them to obtain a superior education.

               The rules proposed for readoption with amendments, like their
predecessors, address the following areas:




                                             12
   Standards for determining eligibility. The rules ensure that there will be clarity and
    consistency in defining domicile for all students, including those having parents or
    guardians domiciled in different districts. They also ensure that: inappropriate
    demands are not made of persons attempting to register “affidavit” students;
    temporary residency is clarified as a basis for attending school in a district; and
    considerations such as housing conditions or immigration/visa status do not enter into
    entitlement determinations.

   Proofs of eligibility. The rules ensure that applicants are afforded a range of
    possibilities from which to select forms of proof, so that districts do not request
    documents or information which are protected from disclosure or do not pertain to
    statutory eligibility requirements for the type of application submitted, and that
    districts do not demand any one specific form of proof, or any specific subset of
    proofs, as an absolute condition of admittance regardless of other proofs presented.

   Procedures for initial assessment upon presentation of application, and for
    prompt enrollment or notice of denial of admission. The rules ensure that students
    are not deprived of education while applications are being more thoroughly assessed,
    and that appeals can be expeditiously filed in cases of denial.

   Written notices of ineligibility. The rules ensure that applicants can understand the
    specific basis for any adverse decision and be apprised of their rights and
    responsibilities with respect to continued attendance, appeal and potential liability for
    tuition, as well as of parent/guardian and district board obligations under the
    compulsory education law.

   Procedures for removal of enrolled students. The rules ensure that districts may
    seek removal of students due to changed circumstances, newly discovered
    information, more thorough assessment of applications or re-evaluation of status, and
    that hearings are conducted before the district board of education prior to a final
    decision to remove a student if the district’s determination of ineligibility is disputed.

   Appeals and assessment/calculation of tuition. The rules ensure that students,
    parents and districts are aware of the processes for appealing determinations of
    ineligibility and enforcing tuition judgments in Superior Court; that there will be a
    uniform method of assessing and calculating tuition for periods of ineligible
    attendance; and that applicants will understand what their obligation may be if a
    student is enrolled in school and later found ineligible by the district board or by the
    Commissioner on appeal.

                In most respects, the rules proposed for readoption are unchanged from the
prior chapter, other than technical changes, minor adjustments in the interest of currency
and clarity, and three instances of “practical” amendment based on recent Department
experience: 1) a clarification that school districts may take applications for enrollment by
appointment so long as the scheduling of such appointments does not result in undue
delay in enrolling students; 2) a clarification that appeals of district ineligibility


                                             13
determinations are made to the Commissioner through the contested case process as set
forth in N.J.A.C. 6A:3, not the “appeals” process set forth in N.J.A.C. 6A:4 to implement
the provisions of P.L. 2008, c. 36; and 3) a specific statement of the consequences of an
appellant abandoning his or her appeal prior to its final adjudication or settlement.

                Significant changes are proposed, however, to the rules governing
standards for determining eligibility in order to implement the holdings of recent case
law: M.L.P., on behalf of minor child, C.L.P. v. Board of Education of the Township of
Bloomfield, Essex County, Commissioner decision #495-08, decided December 29, 2008;
A.M.S., on behalf of minor child, A.D.S. v. Board of Education of the City of Margate,
Atlantic County, and Board of Education of the Township of Jackson, Ocean County,
Commissioner Decision No. 349-07, decided September 7, 2007, affirmed State Board of
Education, Decision No. 26-07, decided March 19, 2008; V.S.-L., on behalf of minor
child, Z.M.M. v. Board of Education of the City of Garfield, Bergen County,
Commissioner decision #4281-07, decided July 9, 2007; I.B., on behalf of minor child,
M.A., III v. Board of Education of the Township of Belleville, Essex County, State Board
of Education Decision No. 51-05, decided December 6, 2006; and D.M. on behalf of
minor child, B.N., v. Board of Education of the Township of Ewing, Mercer County, State
Board of Education Decision No. 20-02, decided November 5, 2003. Specifically,
amendments are proposed to: 1) define the term “guardian” in light of contemporary
family law which more commonly uses the concept of “custody” and clarify that
references to “parent” mean “parent or guardian” within the context of this chapter; 2)
stress that students have an absolute entitlement, should they choose to exercise it, to
attend school in their district of domicile, even where a student might actually be living
elsewhere with a person other than a parent or guardian or might also qualify for
attendance in a different district based on “affidavit” status or temporary residency of less
than one year; and 3) clarify that court orders entitling students to attend school in a
district under N.J.S.A. 18A:38-2 – which are orders of placement in resource family
(foster) homes – do not include orders of residential custody, which are governed by
N.J.S.A. 18A:38-1 and are subject to a rebuttable presumption that the student is actually
living with the designated custodian.

                Additionally, the Department proposes to reiterate, in the chapter’s overall
“Purpose and scope” section at N.J.A.C. 6A:22-1.1, a provision – currently found only in
the section (N.J.A.C. 6A:22-2.1(b)) pertaining to local district policies and procedures –
requiring the chapter to be liberally construed so as to effectuate a student’s right to free
public education. The Department proposes such reiteration to stress – both to interested
parties and to any tribunal reviewing disputes arising under N.J.S.A. 18A:38-1 – that the
chapter is not intended to be applied in a way that denies access to the public schools of a
district where a student satisfies the requirements of statute, but his or her circumstances
do not “fit” within the parameters of the Department’s implementing rules. The
Department emphasizes that, while it has made every effort to provide clarity and
consistency in situations of the type most commonly presented by applicants for
enrollment, it cannot hope to foresee every scenario that might arise in regard to student
residency and its rules are not intended to establish technical barriers to a student’s lawful
attendance at school.



                                             14
              Cross-reference is made to rules, found in N.J.A.C. 6A:3, Controversies
and Disputes, for appealing a district board’s determination of ineligibility to the
Commissioner, and to rules, found in N.J.A.C. 6A:17-2, Education of Homeless
Children, implementing the specific paragraph of N.J.S.A. 18A:38-1 dealing with
homeless students. Pertinent statutes are referenced throughout the rules.

                The Department has provided a 60-day comment period in this notice of
proposal, so that this notice is excepted from the requirements of N.J.A.C. 1:30-3.3(a)5.
The following summarizes the proposed readoption with amendments.


SUBCHAPTER 1. Purpose, Scope and Definitions

N.J.A.C. 6A:22-1.1 Purpose and scope

                This section sets forth the general purpose and scope of the chapter. It
includes proposed amendments to incorporate statutory references and more precisely
delineate that “children of military parents” as referenced in the existing rule was
intended to apply to students addressed by N.J.S.A. 18A:38-3(b) and N.J.S.A. 18A:38-7.7
et seq. It further proposes to incorporate, for purposes of emphasis at the outset of the
chapter, the provision previously found only at N.J.A.C. 6A:22-2.1(b), requiring the
chapter to be liberally construed so as to effectuate a student’s lawful right to free public
education.


N.J.A.C. 6A:22-1.2 Definitions

               This section defines certain terms used throughout the chapter. Proposed
for addition are: 1) a definition of “appeal” so that parents, students and school officials
may clearly recognize that this term refers to contested case proceedings before the
Commissioner of Education as set forth in N.J.A.C. 6A:3, rather than Commissioner
appeals of the type newly established by P.L. 2008, c. 38 and implemented through
N.J.A.C. 6A:4; and 2) a definition of “guardian” that includes, in the interest of
comprehensiveness, the Department of Children and Families for purposes of N.J.S.A.
18A:38-1(e), and encompasses, to avoid confusion and ambiguity in light of
contemporary family law terminology, persons awarded “custody” of a child, with the
proviso that orders assigning residential custody shall be subject to a rebuttable
presumption that the child is actually living with the designated custodian.

SUBCHAPTER 2. District Board of Education Policies

N.J.A.C. 6A:22-2.1 Adoption by district board of education

              This section requires each district board of education to adopt and make
available to parents and the public written policies and procedures incorporating the



                                             15
requirements of the chapter, liberally construed so as to effectuate students’ lawful right
to free public education. To stress the source and preeminence of this right, an
amendment is proposed referencing its statutory and constitutional origin.

N.J.A.C. 6A:22-2.2 Discretionary admission of nonresident students

                 This section clarifies that the rules of the chapter may not be construed to
conflict with the statutory provision at N.J.S.A. 18A:38-3(a), which permits school
attendance by nonresident students, with or without payment of tuition, at the discretion
of the district board of education. No changes are proposed to the current rule.


SUBCHAPTER 3. Eligibility to Attend School

N.J.A.C. 6A:22-3.1 Students domiciled within the district

                 This section establishes who is entitled to attend the schools of a district
based on domicile by attempting to provide clear, consistent rules addressing the many
living situations which students may present upon applying for enrollment in a district. It
also clarifies that the proposed rules do not exclude students under the age of five or over
the age of 20 from the scope of their coverage, where such students are otherwise entitled
by law to free public education.

                To reflect the holdings of recent case law, amendments are proposed to:
1) insert the words “or guardian” in a number of places to clarify that references to
“parent” within the context of this chapter mean “parent or guardian,” and delete
references to “legal” guardianship where a rule is intended to apply to “guardians” as
proposed for definition at N.J.A.C. 6A:22-1.2; and 2) stress that students have an
absolute entitlement, should they choose to exercise it, to attend school in their district of
domicile, even where a student might actually be living elsewhere with a person other
than a parent or guardian, or might also qualify for attendance in a different district based
on “affidavit” status or temporary residency of less than one year. Technical
amendments are proposed to: 1) ensure that the proposed N.J.A.C. 6A:22-3.1(a)1iv
(currently codified as N.J.A.C. 6A:22-3.1(a)1ii(2)), providing that entitlement to
transportation is limited to the home of the district domiciliary in situations where a
student attending school in the district of domicile lives outside the district, is clearly
understood as applicable to all domicile situations for all or any part of a school year;
2) update a reference to the former Division of Youth and Family Services, now the
Department of Children and Families; and 3) remove a potential for confusion in the
provision (N.J.A.C. 6A:22-3.1(b)) on multi-unit dwellings by making its language more
precise.

N.J.A.C. 6A:22-3.2 Other students eligible to attend school

               This section provides for attendance at school on bases other than
domicile. It establishes specific criteria for attendance based on “affidavit student” and



                                             16
temporary residency status, and incorporates statutory provisions for attendance by
children of parents or guardians belonging to the National Guard or reserve component of
the United States armed forces, children placed in the home of a district resident by court
order, and children residing on federal property. It also clarifies that the proposed rules
are not intended to exclude students under the age of five or over the age of 20 from the
scope of their coverage, where such students are otherwise entitled by law to free public
education.

               Amendments are proposed to: 1) stress that students have an absolute
entitlement, should they choose to exercise it, to attend school in their district of domicile
even if they qualify for attendance in a different district based on “affidavit” status or
temporary residency of less than one year; 2) insert the words “or guardian” in a number
of places to clarify that references to “parent” within the context of this chapter mean
“parent or guardian,” and delete references to “legal” guardianship where a rule is
intended to apply to “guardians” as proposed for definition at N.J.A.C. 6A:22-1.2; and 3)
clarify that court orders entitling students to attend school in a district under N.J.S.A.
18A:38-2 do not include orders of residential custody, which are governed by N.J.S.A.
18A:38-1, subject to a rebuttable presumption that the student is actually living with the
designated custodian. Technical amendments are proposed to add further statutory
references and adjust existing references for parallel construction within the text of a rule.

N.J.A.C. 6A:22-3.3 Housing and immigration status

                This section prohibits determinations of student eligibility based on
housing conditions, compliance with the terms of a lease, or immigration/visa status other
than in the case of a visa (F-1) issued for limited study in the United States on a tuition
basis. In the latter case, the rule provides that school districts permitting attendance of F-
1 students may adopt policies and procedures requiring advance payment of tuition
before the school district will issue the immigration form (I-20) necessary for a student to
obtain an F-1 visa. No changes are proposed to the current rule.

N.J.A.C. 6A:22-3.4 Proof of eligibility

                This section identifies the types of documents districts must accept from
applicants for enrollment, additionally clarifying that acceptable proofs are not strictly
limited to those listed. The section requires proofs to be reviewed as a totality, and
precludes districts from conditioning the admission or continued attendance of a student
on any one document or subset of documents without regard to other proofs presented. It
further prohibits demand of information or documents that are otherwise protected from
disclosure, such as income tax returns, social security numbers, compliance with housing
ordinances or conditions of tenancy, or immigration/visa status except in the case of F-1
student visas, although these may be voluntarily disclosed by an applicant. Amendments
are proposed to emphasize that the list of prohibited documents should not be construed
as all-inclusive, and that districts may neither demand such documents nor imply that
they are necessary for enrollment, although they may be considered if voluntarily
proffered. Consistent with changes made elsewhere in the chapter, the term “legal



                                             17
guardian” would be replaced by “guardian” as proposed for definition at N.J.A.C. 6A:22-
1.2.

SUBCHAPTER 4. Initial assessment and enrollment

N.J.A.C. 6A:22-4.1 Registration forms and procedures for initial assessment

               This section establishes requirements for student registration forms and
procedures for initial assessment of student eligibility. It requires each district board of
education to provide for: 1) prompt assessment of applications and admission of students,
including use of registration forms supplied by the Commissioner or locally developed
forms consistent with them; and 2) availability of trained staff and appropriate forms in
sufficient number to ensure expeditious processing of various types of applications. It
also requires that initial determinations of eligibility be made at the time of application,
subject to more thorough review later, and that enrollment take place promptly in all
cases except those of clear, uncontested denial. Where denial is uncontested, district staff
are required to make contact with the school district of actual domicile or residence, or
with the Department of Children and Families, to facilitate enforcement of compulsory
education laws.       Finally, it ensures that absence of student medical information,
educational information, prior records or a birth certificate may not serve as a basis on
which to deny enrollment; it further ensures that a student’s provisional enrollment or
attendance is not conditioned on advance payment of tuition in whole or part.

                An amendment is proposed, based on Department experience, clarifying
that applications for enrollment may be taken by appointment so long as the scheduling
of such appointments does not result in undue delay in enrolling students. Consistent
with changes proposed elsewhere in the chapter, the term “legal guardian” would be
replaced by “guardian” as proposed for definition at N.J.A.C. 6A:22-1.2. Technical
changes are proposed for greater clarity and precision in the text, and to update the
reference to the former Division of Youth and Family Services.

N.J.A.C. 6A:22-4.2 Notices of ineligibility

                This section establishes requirements for the form and content of the
notice provided to an applicant who is found ineligible to attend the schools of the
district. Requirements are established in the areas of language, statement of basis for
determination, identification of missing documents or information, right of appeal to the
Commissioner, entitlement to attend school during the period in which an appeal can be
filed and during the pendency of any such appeal, removal of enrolled students where no
appeal is filed by the end of the statutory appeal period, assessment of tuition at a
specified rate for any period of ineligible attendance if no appeal is filed or an appeal is
abandoned or decided in favor of the district, and compliance with compulsory education
laws. The section also provides for sample notices to be prepared and made available by
the Commissioner, and for the district to identify a contact person within the district who
can provide assistance to the applicant in explaining the contents of the notice.
Consistent with changes proposed elsewhere in the chapter, the term “legal guardian”



                                            18
would be replaced by “guardian” as proposed for definition at N.J.A.C. 6A:22-1.2.
Technical changes are proposed for greater clarity and precision in the text, and to update
the reference to the former Division of Youth and Family Services.

N.J.A.C. 6A:22-4.3 Removal of currently enrolled students

               This section clarifies that district boards of education may seek to identify,
through further investigation or periodic requests for current validation of previously
determined eligibility status, students enrolled in the district who may be ineligible for
continued attendance due to error in initial assessment, changed circumstances or newly
discovered information. It reiterates the statutory scheme providing that when a student,
enrolled as eligible or provisionally eligible and attending school in the district, is later
determined to be ineligible for continued attendance, the chief school administrator may
apply to the district board for removal of the student following notice to the parent,
guardian, adult student or resident keeping an “affidavit student,” and following a hearing
before the district board. It also clarifies that such hearings may be conducted, if board
policy so permits, by a committee of the board, upon whose recommendation the full
board shall act by vote taken at a meeting duly convened and conducted pursuant to
N.J.S.A. 10:4-6 et seq. (Open Public Meetings Act). Consistent with changes proposed
elsewhere in the chapter, the term “legal guardian” would be replaced by “guardian” as
proposed for definition at N.J.A.C. 6A:22-1.2. No other changes are proposed.

SUBCHAPTER 5. Appeal of eligibility determinations

N.J.A.C. 6A:22-5.1 Appeal to the Commissioner

                 This section provides that a local district determination of ineligibility to
attend school may be appealed to the Commissioner and that such appeals shall proceed
as set forth in N.J.S.A. 18A:38-1 and N.J.A.C. 6A:3-8.1 et seq., with “affidavit student”
appeals to be filed by the resident keeping the student. Amendments are proposed to
reiterate that the appeals in question are initiated by the filing of a petition for contested
case proceedings, consistent with the proposed definition of “appeal” in N.J.A.C. 6A:22-
1.2. A technical amendment is proposed to add a statutory reference and provide for
greater precision in the rule’s language.

SUBCHAPTER 6. Assessment and Calculation of Tuition

N.J.A.C. 6A:22-6.1 Assessment of tuition where no appeal is filed

                This section provides that if no appeal is filed following the district’s
notice of ineligibility to the applicant, the district board of education may assess tuition
for the period of ineligible attendance. It further memorializes that the district board may
obtain a Commissioner’s order assessing such tuition and have it enforced through
recording of the judgment on the docket of the Superior Court pursuant to N.J.S.A.
2A:58-10. Technical amendments are proposed for greater clarity and precision in the
rule’s language, and a reference is added to identify the procedure (a new section to be



                                             19
proposed for inclusion in N.J.A.C. 6A:3 upon its impending readoption) for requesting
recording of judgments.

N.J.A.C. 6A:22-6.2 Assessment of tuition where appeal is filed

                This section provides that, at the conclusion of proceedings on appeal,
where the appellant does not sustain the burden of demonstrating entitlement to attend the
schools of the district or where the appeal is abandoned through withdrawal, failure to
prosecute or any means other than settlement agreeing to waive or reduce tuition, the
Commissioner may assess tuition for the period of a student’s ineligible attendance in a
district, including the 21-day period for filing of an appeal and the pendency of the
hearing and decision on appeal. It further memorializes that the district board may have
the Commissioner’s assessment order enforced through recording of the judgment on the
docket of the Superior Court pursuant to N.J.S.A. 2A:58-10. Amendments are proposed
for precision in language, to more fully specify what appellants and district boards may
expect when the Commissioner finds that an appeal has been abandoned, and to add a
reference to the procedure for requesting recording of judgments, embodied in a new
section to be proposed for inclusion in N.J.A.C. 6A:3 upon its impending readoption.

N.J.A.C. 6A:22-6.3 Calculation of tuition

                 This section clarifies that tuition assessed pursuant to this chapter is to be
calculated on a per student basis, by applicable grade/program category and consistent
with the provisions of N.J.A.C. 6A:23-3.1, and that the individual student’s record of
daily attendance shall have no impact on calculation of the period of ineligibility. It also
clarifies that equitable considerations may enter into tuition determinations both at the
local district level and on appeal. No changes are proposed to the current rule.


                                       Social Impact

                 The proposed readoption with amendments will permit the continued
implementation of the statutory scheme providing each student access to a thorough and
efficient system of public education, while enabling each district board of education to
identify, remove and assess tuition for students who are unable to demonstrate
entitlement to attend school within the district based on statutory criteria. The rules
provide students, parents and district boards of education with clear notice of their rights
and responsibilities, including the eligibility status of students in various types of
circumstances and procedures designed to ensure prompt admittance to school so that
students are not denied access to public education while awaiting resolution of their
eligibility status.

                                     Economic Impact

                The rules proposed for readoption with amendments may have had, since
their initial adoption in November 2001, some impact on individual school districts



                                              20
which previously implemented the operative statute so as to exclude or delay admission
to students, as well as on districts which failed to provide adequate information to
rejected applicants about their rights of appeal. Generally, however, additional costs to
districts as a result of increased enrollment and residency-related litigation are offset by
State aid together with tuition collected as a result of assessments against ineligible
attendees. The proposed readoption with amendments will impose no economic burden
on applicants for school attendance, other than the cost of legal representation should an
applicant choose to obtain it in conjunction with hearings before the district board of
education or litigation arising out of a school attendance dispute.

                              Federal Standards Statement

               The rules proposed for readoption with amendments will not be
inconsistent with or exceed the Federal standards or requirements, since no such
standards or requirements address the mechanisms prescribed in this chapter.

                                       Jobs Impact

               The rules proposed for readoption with amendments will result in neither
generation nor loss of jobs in public school districts or the State.

                              Agriculture Industry Impact

               The rules proposed for readoption with amendments will have no impact
on the agriculture industry.


                            Regulatory Flexibility Statement

              The rules proposed for readoption with amendments do not impose
recording, record keeping or other compliance requirements on small businesses as
defined by N.J.S.A. 52:14B-16 et seq., the Regulatory Flexibility Act. The rules impact
solely upon New Jersey public schools.

                                 Smart Growth Impact

              The rules proposed for readoption with amendments will have no impact
on the achievement of smart growth and implementation of the State Development and
Redevelopment Plan.

                             Housing Affordability Impact

               The rules proposed for readoption with amendments will have no impact
on the average cost of housing in the State. The rules establish standards and procedures
for the enrollment of students in school based on domicile or residency.




                                            21
                        Smart Growth Development Impact

              The rules proposed for readoption with amendments and repeal will not
evoke a change in housing production in Planning Area 1 or 2, or within designated
centers, under the State Development and Redevelopment Plan. The rules establish
standards and procedures for the enrollment of students in school based on domicile or
residency.


               Full text of the proposed recodification with amendments follows
(additions indicated in boldface thus; deletions indicated in brackets [thus]):




                                         22
                                        Chapter 22

                                STUDENT RESIDENCY



SUBCHAPTER 1. PURPOSE, SCOPE AND DEFINITIONS



6A:22-1.1 Purpose and scope



   (a) The rules in this chapter have been adopted to implement the provisions of

N.J.S.A. 18A:38-1(a) through (e). Other than by reference to the applicable statutes and

rules, the chapter does not address attendance at school by nonresidents (N.J.S.A.

18A:38-3(a)), children of certain military parents (N.J.S.A. 18A:38-3(b)), children

residing on Federal property (N.J.S.A. 18A38-7.7 et seq.), or persons qualifying under

N.J.S.A. 18A:38-1(f), which provides for attendance by homeless students and is

implemented through N.J.A.C. 6A:17-2, Education of Homeless Children.



   (b) The provisions of this chapter shall apply to students over five and under 20 years

of age pursuant to N.J.S.A. 18A:38-1, and to such younger or older students as are

otherwise entitled by law to free public education.



    (c) The provisions of this chapter shall be liberally construed so as to effectuate the

constitutional and statutory right of students to a free public education.



6A:22-1.2 Definitions



                                             23
   The following words and terms, when used in this chapter, shall have the following

meanings unless the content clearly indicates otherwise.



   "Affidavit student" means a student attending, or seeking to attend, school in a district

pursuant to N.J.S.A. 18A:38-1(b) and N.J.A.C. 6A:22-3.1(a)2.

   “Appeal to the Commissioner” or “appeal” means contested case proceedings before

the Commissioner of Education pursuant to N.J.A.C. 6A:3.

   "Commissioner" means the Commissioner of Education or his or her designee.

   “Guardian” means a person to whom a court of competent jurisdiction has awarded

guardianship or custody of a child, provided that a residential custody order shall entitle a

child to attend school in the residential custodian’s school district subject to a rebuttable

presumption that the child is actually living with such custodian.        It also means the

Department of Children and Families for purposes of N.J.S.A. 18A:38-1(e).



SUBCHAPTER 2. DISTRICT BOARD OF EDUCATION POLICIES



6A:22-2.1 Adoption by district board of education



   (a) Each district board of education shall adopt written policies and procedures

incorporating the requirements of this chapter and shall make copies available to parents

and the public.




                                             24
    (b) In all such policies and procedures, a district board of education shall construe the

provisions of this chapter liberally so as to effectuate the constitutional and statutory right

of students to a free public education.



6A:22-2.2 Discretionary admission of nonresident students



    Nothing in this chapter shall be construed to limit the discretion of a district board of

education to admit nonresident students, or the ability of a nonresident student to attend

school, with or without payment of tuition, with the consent of the district board of

education, pursuant to N.J.S.A. 18A:38-3(a).



SUBCHAPTER 3. ELIGIBILITY TO ATTEND SCHOOL



6A:22-3.1 Students domiciled within the school district



    (a) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in a school district if the student is domiciled within the district.



        1. A student is domiciled in the school district when he or she is [living with] the

child of a parent or [legal] guardian whose permanent home is located within the school

district. A home is permanent when the parent or guardian intends to return to it when




                                               25
absent and has no present intent of moving from it, notwithstanding the existence of

homes or residences elsewhere.



           i. Where a student’s parents or guardians are domiciled within different school

districts, and where there is no court order [or written agreement between the parents]

designating the school district for school attendance, the student’s domicile is the school

district of the parent or guardian with whom the student lives for the majority of the

school year, regardless of which parent has legal custody.



           ii. Where a student’s physical custody is shared on an equal-time, alternating

week/month or other similar basis such that the student is not living with one parent or

guardian for a majority of the school year, and where there is no court order [or written

agreement between the parents] designating the school district for school attendance, the

student’s domicile is the present domicile of the parent or guardian with whom the

student resided on the last school day prior to October 16 preceding the date of the

application.



               (1) Where such a student resided with both parents or guardians, or with

neither parent or guardian, on the last school day prior to the preceding October 16, the

student’s domicile is the domicile of the parent or guardian with whom the parents or

guardians indicate the student will be residing on the last school day prior to the ensuing

October 16. Where the parents or guardians do not designate, or cannot agree upon, the

student’s likely residence as of that date, or if on that date the student is not residing with




                                              26
the parent or guardian previously indicated, the student shall attend school in the school

district where the parent or guardian with whom the student is actually living as of the

last school day prior to October 16 is domiciled.



          iii. Where a student is living with a person other than a parent or guardian,

nothing herein is intended to limit the student’s entitlement to attend school in the parent

or guardian’s district of domicile pursuant to the provisions of this chapter.



          [(2)]iv. No school district shall be required to provide transportation for a

student residing outside the school district for all or part of the school year, other than

that based upon the home of the parent or guardian domiciled within the district to the

extent required by law, as a result of being the district of domicile for school attendance

purposes pursuant to the provisions of this [subsection] chapter.



       2. A student is domiciled in the school district when he or she has reached the age

of 18 or is emancipated from the care and custody of a parent or [legal] guardian and has

established a permanent home within the district. A home is permanent when the student

intends to return to it when absent and has no present intent of moving from it,

notwithstanding the existence of homes or residences elsewhere.



       3. A student is domiciled in the school district when the student has come from

outside the State and is living with a person domiciled in the district who will be applying

for [legal] guardianship of the student upon expiration of the six-month "waiting period"




                                             27
of State residency required pursuant to N.J.S.A. 2A:34-30(e) and 2A:34-31. However,

any such student may later be subject to removal proceedings if application for [legal]

guardianship is not made within a reasonable period of time following expiration of the

mandatory waiting period.



        4. A student is domiciled in the school district when his or her parent or [legal]

guardian resides within the district on an all-year-round basis for one year or more,

notwithstanding the existence of a domicile elsewhere.



        5. A student is domiciled in the school district if the [Division of Youth and

Family Services in the Department of Human Services] Department of Children and

Families is acting as the student’s [legal] guardian and has placed the student in the

district.



    (b) Where a student’s dwelling is located within two or more school districts, or bears

a mailing address that does not reflect the dwelling’s physical location within a

municipality, the district of domicile for school attendance purposes shall be that of the

municipality to which [the resident pays] the majority of [his or her] the dwelling’s

property tax is paid, or to which the majority of the unit’s property tax [for the dwelling

in question] is paid by the owner of a multi-unit dwelling.



    1. Where property tax is paid in equal amounts to two or more municipalities, and

where there is no established assignment for students residing in the affected dwellings,




                                            28
the district of domicile for school attendance purposes shall be determined through

assessment of individual proofs as provided pursuant to N.J.A.C. 6A:22-3.4.



       2. This provision shall not preclude the attendance of currently enrolled students

who were permitted to attend school in the school district prior to the provision’s initial

promulgation on December 17, 2001.



   (c) Where a student’s parent or guardian elects to exercise such entitlement, nothing

herein is intended to foreclose a student’s entitlement to attend school in the district of

domicile notwithstanding that the student is qualified to attend school in a different

district pursuant to N.J.S.A. 18A:38-1 (b) or the temporary residency (less than one year)

provision of N.J.S.A. 18A:38-1 (d).



6A:22-3.2 Other students eligible to attend school



   (a) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-1(b) if the

student’s parent or guardian elects to exercise such entitlement and if [that] the student is

kept in the home of a person other than the student’s parent or [legal] guardian, where the

person is domiciled in the school district and is supporting the student without

remuneration as if the student were his or her own child.




                                             29
       1. A student is not eligible to attend school in a school district pursuant to this

provision unless:



           i. The student’s parent or guardian has filed, together with documentation to

support its validity, a sworn statement that he or she is not capable of supporting or

providing care for the student due to family or economic hardship and that the student is

not residing with the other person solely for the purpose of receiving a free public

education; and



           ii. The person keeping the student has filed, if so required by the district board

of education:



                 (1) A sworn statement that he or she is domiciled within the school

district, is supporting the child without remuneration and intends to do so for a longer

time than the school term, and will assume all personal obligations for the student relative

to school requirements; and



                 (2) A copy of his or her lease if a tenant, or a sworn landlord’s statement

if residing as a tenant without written lease.



       2. A student shall not be deemed ineligible under this provision because required

sworn statements(s) cannot be obtained, where evidence is presented that the underlying




                                                 30
requirements of the law are being met notwithstanding the inability of the resident or

student to obtain the sworn statement(s).



       3. A student shall not be deemed ineligible under this provision where evidence

is presented that the student has no home or possibility of school attendance other than

with a [non-parent] district resident who is not the student’s parent or guardian but is

acting as the sole caretaker and supporter of the student.



       4. A student shall not be deemed ineligible under this subsection solely because a

parent or [legal] guardian gives gifts or makes limited contributions, financial or

otherwise, toward the welfare of the student, provided that the resident keeping the

student receives no payment or other remuneration from the parent or guardian for

regular maintenance of the student.



       5. Pursuant to N.J.S.A. 18A:38-1(c) any person who fraudulently allows a child

of another person to use his or her residence and is not the primary financial supporter of

that child and any person who fraudulently claims to have given up custody of his or her

child to a person in another district commits a disorderly persons offense.



   (b) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-1(b) if the

student is kept in the home of a person domiciled in the district, other than the parent or




                                             31
[legal] guardian, where the parent or [legal] guardian is a member of the New Jersey

National Guard or the reserve component of the United States armed forces and has been

ordered into active military service in the United States armed forces in time of war or

national emergency.



       1. Eligibility under this subsection shall cease at the end of the current school year

upon the parent or [legal] guardian’s return from active military duty.



   (c) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-1(d) if the

student’s parent or [legal] guardian temporarily resides within the district and elects to

have the student attend school in the district of temporary residence, notwithstanding the

existence of a domicile elsewhere.



       1. Where required by the district board of education, the parent or [legal] guardian

shall demonstrate that such temporary residence is not solely for purposes of a student’s

attending school within the school district of temporary residence;



       2. Where one of a student’s parents or guardians temporarily resides in a school

district while the other is domiciled or temporarily resides elsewhere, eligibility to attend

school shall be determined in accordance with the criteria of N.J.A.C. 6A:22-3.1(a)li.

However, no student shall be eligible to attend school based upon a [parent’s] parent or




                                             32
guardian’s temporary residence in a district unless the parent or guardian demonstrates, if

so required by the district board of education, that such temporary residence is not solely

for purposes of a student’s attending school within the district.



   (d) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-1(f) if the

student’s parent or guardian moves to another district as the result of being homeless,

subject to the provisions of N.J.AC. 6A:17-2, Education of Homeless Children.



   (e) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-2 if the student

is placed in the home of a district resident by court order [pursuant to N.J.S.A. 18A:38-2]

or by a society, agency or institution as referenced in that statute. “Court order” as used

in this paragraph does not encompass orders of residential custody, under which claims of

entitlement to attend school in a district are governed by the provisions of N.J.S.A.

18A:38-1 and the applicable standards set forth in this chapter.



   (f) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-3(b) if the

student had previously resided in the district and if the parent or guardian is a member of




                                             33
the New Jersey National Guard or the United States reserves and has been ordered to

active service in time of war or national emergency [pursuant to N.J.S.A. 18A:38-3(b)].



    (g) A student over five and under 20 years of age pursuant to N.J.S.A. 18A:38-1, or

such younger or older student as is otherwise entitled by law to free public education, is

eligible to attend school in the school district pursuant to N.J.S.A. 18A:38-7.7 et seq. if

the student resides on Federal property within the State [pursuant to N.J.S.A. 18A:38-7.7

et seq.].



6A:22-3.3 Housing and immigration status



    (a) The physical condition of an applicant’s housing, or an applicant’s compliance

with local housing ordinances or terms of lease, shall not affect eligibility to attend

school.



    (b) Except as set forth in (b)1 below, immigration/visa status shall not affect

eligibility to attend school. Any student over five and under 20 years of age pursuant to

N.J.S.A. 18A:38-1, or such younger or older student as is otherwise entitled by law to

free public education, who is domiciled in the district or otherwise eligible to attend

school there pursuant to N.J.S.A. 6A:22-3.2 shall be enrolled without regard to, or

inquiry concerning, immigration status.




                                            34
        1. The provisions of N.J.S.A. 18A:38-1 and this chapter shall not apply to

students who have obtained, or are seeking to obtain, a Certificate of Eligibility for

Nonimmigrant Student Status (INS form I-20) from the district in order to apply to the

INS for issuance of a visa for the purpose of limited study on a tuition basis in a United

States public secondary school (“F-1” visa).



          i. Districts permitting the attendance of F-1 students may adopt policies and

procedures requiring advance payment of tuition, or entry into binding agreements for

payment of tuition, before the district will provide the requested I-20 form.



6A:22-3.4 Proof of eligibility



    (a) A district board of education shall accept a combination of any of the following or

similar forms of documentation from persons attempting to demonstrate a student’s

eligibility for enrollment in the school district:



        1. Property tax bills, deeds, contracts of sale, leases, mortgages, signed letters

from landlords and other evidence of property ownership, tenancy or residency;



        2. Voter registrations, licenses, permits, financial account information, utility

bills, delivery receipts, and other evidence of personal attachment to a particular location;




                                               35
       3. Court orders, State agency agreements and other evidence of court or agency

placements or directives;



       4. Receipts, bills, cancelled checks, insurance claims or payments, and other

evidence of expenditures demonstrating personal attachment to a particular location, or,

where applicable, to support of the student;



       5. Medical reports, counselor or social worker assessments, employment

documents, unemployment claims, benefit statements, and other evidence of

circumstances demonstrating, where applicable, family or economic hardship, or

temporary residency;



       6. Affidavits, certifications and sworn attestations pertaining to statutory criteria

for school attendance, from the parent, [legal] guardian, person keeping an "affidavit

student," adult student, person(s) with whom a family is living, or others as appropriate;



       7. Documents pertaining to military status and assignment; and



       8. Any other business record or document issued by a governmental entity.



   (b) A district board of education may accept forms of documentation not listed above,

and shall not exclude from consideration any documentation or information presented by

a person seeking to enroll a student.




                                               36
   (c) A district board of education shall consider the totality of information and

documentation offered by an applicant, and shall not deny enrollment based on failure to

provide a particular form of documentation, or a particular subset of documents, without

regard to other evidence presented.



   (d) A district board of education shall not require or request, as a condition of

enrollment in school, any information or document protected from disclosure by law, or

pertaining to criteria which are not legitimate bases for determining eligibility to attend

school. These include but are not limited to:



       1. Income tax returns;



       2. Documentation or information relating to citizenship or immigration/visa

status, except as set forth in N.J.A.C. 6A:22-3.3(b);



       3. Documentation or information relating to compliance with local housing

ordinances or conditions of tenancy; and



       4. Social security numbers.



   (e) Documents or information of the type referenced in (d) above, or pertinent parts

thereof, may be considered by the district board of education if voluntarily disclosed by




                                             37
the [person] applicant seeking enrollment. However, the district board of education may

not, directly or indirectly, require or request such disclosure as [a] an actual or implied

condition of enrollment.



SUBCHAPTER 4. INITIAL ASSESSMENT AND ENROLLMENT



6A:22-4.1 Registration forms and procedures for initial assessment



    (a) Each district board of education shall use registration forms provided by the

Commissioner, or locally developed forms that:



        1. Are consistent with the forms provided by the Commissioner;



        2. Do not seek information prohibited by this subchapter or any other provision of

statute or rule;



        3. Summarize the criteria for attendance set forth in N.J.S.A. 18A:38-1 for

applicant reference, and specify the nature and form of any sworn statements to be filed;



        4. Clearly state the purpose, in relation to such criteria, for which requested

information is being sought; and




                                            38
        5. Provide notice to applicants that any initial determination of eligibility is

subject to more thorough review and re-evaluation, and that there is a potential for

assessment of tuition in the event that an initially admitted applicant is later found

ineligible.



    (b) Each district board of education shall ensure that sufficient numbers of

registration forms, and sufficient numbers of trained registration staff, are available to

ensure prompt determinations of eligibility and enrollment. Applications for enrollment

may be taken by appointment, but such appointments must be promptly scheduled and

may not unduly defer a student’s attendance at school.



        1. If the school district uses separate forms for "affidavit student" applications,

rather than a single form for all types of application for enrollment, such forms shall

comply in all respects with the provisions of (a) above. Where such forms are used, the

district shall provide them to any person attempting to register a student of whom he or

she is not the parent or [legal] guardian, whether or not they are specifically requested.



              i. District boards of education or their agents shall not demand or suggest that

[legal] guardianship or custody [shall] must be obtained before enrollment will be

considered for a student living with a person other than the parent or [legal] guardian,

since such student may qualify as an “affidavit student.”




                                               39
             ii. District boards of education or their agents shall not demand or suggest

that "affidavit student" proofs be produced by an applicant seeking to enroll a student of

whom the applicant has [legal] guardianship or custody.



       2. A district level school administrator designated by the chief school

administrator shall be available, and clearly identified to applicants, to assist persons who

are experiencing difficulties with the enrollment process.



   (c) Initial determinations of eligibility shall be made upon presentation of an

application for enrollment, and enrollment shall take place immediately in all cases

except those of clear, uncontested denials.



       1. Where an applicant has provided incomplete, unclear or questionable

information, enrollment shall take place immediately, but the applicant shall be placed on

notice that removal will result if defects in the application are not corrected, or an appeal

is not filed, in accordance with subsequent notice to be provided pursuant to N.J.A.C.

6A:22-4.2.



       2. Where [an applicant] a student appears ineligible based on information

provided in the initial application, a preliminary written notice of ineligibility shall be

provided, including an explanation of the right to appeal to the Commissioner, and

enrollment shall take place immediately if the applicant clearly indicates disagreement

with the district’s determination and an intent to appeal to the Commissioner.




                                              40
           i. [A student] An applicant whose student is enrolled pursuant to this

paragraph shall be notified that [he or she] the student will be removed, without hearing

before the district board of education, if no appeal is filed within the 21-day period

established by N.J.S.A. 18A:38-1.



   (d) Where enrollment is denied and no intent to appeal is indicated, applicants shall

be advised that they shall comply with compulsory education laws and shall, where the

student is between the ages of 6 and 16, be asked to complete a written statement

indicating that the student will be attending school in another school district, attending a

nonpublic school, or receiving instruction elsewhere than at a school pursuant to N.J.S.A.

18A:38-25. In the absence of a written statement from the parent or [legal] guardian that

the student will be attending school in another school district, attending a nonpublic

school, or receiving instruction elsewhere than at a school, for purposes of ensuring

compliance with compulsory education laws, designated staff shall contact the school

district of actual domicile or residence, or the [Division of Youth and Family Services]

Department of Children and Families [based on] to report a potential instance of

“neglect” pursuant to N.J.S.A. 9:6-1 (“willfully failing to provide regular school

education as required by law”)[, with].          Such staff shall provide the district or

Department, as the case may be, with the student’s name, the name(s) of the

parent/guardian/resident, and the student’s address to the extent known, [denial of] and

shall indicate that admission to the district has been denied based on residency or

domicile, and [absence of] that there is no evidence of intent to arrange for the child to




                                            41
attend school or receive instruction elsewhere[, for purposes of ensuring compliance with

such laws].



    (e) Where enrollment is denied and an intent to appeal is indicated, or where

enrollment is provisional subject to further review or information, enrollment or

attendance at school shall not be conditioned on advance payment of tuition in whole or

part.



    (f) Each district board of education shall ensure that information suggesting an

applicant may be homeless is identified during the registration process, so that, where

appropriate, procedures may ensue in accordance with N.J.A.C. 6A:17-2, Education of

Homeless Children.



    (g) Enrollment or attendance in the school district shall not be denied based upon

absence of the certified copy of birth certificate or other proof of a student’s identity

required within 30 days of initial enrollment pursuant to N.J.S.A. 18A: 36-25.1.



    (h) Enrollment in the school district shall not be denied based upon absence of student

medical information, although actual attendance at school may be deferred as

necessitated by compliance with rules regarding immunization of students, N.J.A.C.

8:57-4.1 et seq.




                                            42
    (i) Enrollment in the school district, attendance at school, or educational services

where attendance in the regular education program appears inappropriate, shall not be

denied based upon absence of a student’s prior educational record. However, the

applicant shall be advised that the initial educational placement of the student may be

subject to revision upon receipt of records or further assessment of the student by the

district.



6A:22-4.2 Notices of ineligibility



    (a) Where [an applicant] the subject of an initial application is found ineligible to

attend the schools of the district pursuant to this chapter, or the application initially

submitted is found to be deficient upon subsequent review or investigation, notice shall

immediately be provided to the applicant consistent with sample form(s) to be provided

by the Commissioner and meeting the requirements of this section.



        1. Notices shall be in writing, in English and in the native language of the

applicant, issued by the chief school administrator and directed to the address at which

the applicant claims to reside.



    (b) Notices of ineligibility shall include:




                                              43
       1. In cases of denial, a clear description of the specific basis on which the

determination of ineligibility was made, sufficient to allow the applicant to understand

the basis for the decision and determine whether to appeal;



           i. Such description shall identify the specific section of N.J.S.A. 18A:38-1

under which the application was decided.



       2. In cases of provisional eligibility, a clear description of the missing documents

or information that shall be provided in order to attain final eligibility status under the

applicable provision of N.J.S.A. 18A:38-1;



       3. A clear statement of the applicant’s right to appeal to the Commissioner within

21 days of the date of the notice, along with an informational document to be provided by

the Commissioner describing how to file an appeal;



       4. A clear statement that the student is entitled to attend school for the 21-day

period during which an appeal can be made to the Commissioner, but that, if missing

information is not provided or an appeal is not filed, the student will not be permitted to
                            st
attend school beyond the 21 day following the date of the notice;



       5. A clear statement that the student is entitled to continue attending school

during the pendency of an appeal to the Commissioner;




                                             44
       6. A clear statement that, if an appeal is filed with the Commissioner and the

applicant does not sustain the burden of demonstrating the student’s entitlement to attend

the schools of the district, or the applicant abandons the appeal through withdrawal,

failure to prosecute or any means other than settlement, the applicant may be assessed, by

order of the Commissioner enforceable in Superior Court, tuition for any period of

ineligible attendance, including the initial 21-day period and the period during which the

appeal was pending before the Commissioner;



       7. A clear statement of the approximate rate of tuition, pursuant to N.J.A.C.

6A:22-6.3, that an applicant may be assessed for the year at issue if the applicant does not

prevail on appeal, or elects not to appeal;



           i. If removal is based on the student’s having moved from the school district,

the notice of ineligibility shall also provide information as to whether district policy

permits continued attendance, with or without tuition, for students who move from the

district during the course of the school year.



       8. The name of a contact person in the district who can provide assistance in

explaining the contents of the notice; and



       9. Notice that, where no appeal is filed, the parent or [legal] guardian shall still

comply with compulsory education laws, and that, in the absence of a written statement

from the parent or [legal] guardian that the student will be attending school in another




                                              45
school district, attending a nonpublic school, or receiving instruction elsewhere than at a

school, district staff shall notify the school district of actual domicile/residence, or the

[Division of Youth and Family Services] Department of Children and Families [based on]

of a potential instance of “neglect” pursuant to N.J.S.A. 9:6-1 (“willfully failing to

provide regular school education as required by law”)[,]. Such staff shall provide[, of]

the student’s name, the name(s) of the parent/guardian/resident, address to the extent

known, denial of admission to the district based on residency or domicile, and absence of

evidence of intent to attend school or receive instruction elsewhere, for purposes of

facilitating enforcement of the State compulsory education requirement (N.J.S.A.

18A:38-25).



6A:22-4.3 Removal of currently enrolled students



   (a) Nothing in this subchapter shall preclude a district board of education from

seeking to identify, through further investigation or periodic requests for current

validation of previously determined eligibility status, students enrolled in the school

district who may be ineligible for continued attendance due to error in initial assessment,

changed circumstances or newly discovered information.



   (b) When a student, enrolled and attending school in the school district based on an

initial determination of eligibility, is later determined to be ineligible for continued

attendance, the chief school administrator may apply to the district board of education for

removal of the student.




                                            46
       1. The chief school administrator shall issue a preliminary notice of ineligibility

meeting the requirements of N.J.A.C. 6A:22-4.2. However, such notice shall also provide

for a hearing before the district board of education prior to a final decision on removal.



   (c) No student shall be removed from school unless the parent, [legal] guardian, adult

student or resident keeping an "affidavit student," as the case may be, has been informed

of his or her entitlement to a hearing before the board of education.



   (d) Once the hearing is held, or if the parent, [legal] guardian, adult student or

resident keeping an "affidavit student," as the case may be, does not respond to the chief

school administrator’s notice within the designated time frame or appear for hearing, the

district board of education shall make a prompt determination of the student’s eligibility

or ineligibility and shall immediately provide notice thereof in accordance with the

requirements of N.J.A.C. 6A:22-4.2.



   (e) Hearings required pursuant to this subchapter may be conducted, if board policy

so provides, by a committee of the district board of education which shall then make a

recommendation to the full board; however, no student may be removed except by vote

of the district board of education taken at a meeting duly convened and conducted

pursuant to N.J.S.A. 10:4-6 et seq., the Open Public Meetings Act.



SUBCHAPTER 5. APPEAL OF INELIGIBILTY DETERMINATIONS




                                             47
6A:22-5.1 Appeal to the Commissioner



   (a) A school district determination that a student is ineligible to attend the schools of

the district may be appealed to the Commissioner by the parent, [legal] guardian, adult

student or resident keeping an "affidavit student," as the case may be. Such appeals shall

[proceed] be initiated by a petition of appeal, which shall be filed in accordance with

N.J.S.A. 18A:38-1 and N.J.A.C. 6A:3-8.1 et seq. and shall proceed as a contested case

pursuant to N.J.A.C. 6A:3.



       1. [Appeals] Pursuant to N.J.S.A. 18A:38-1(b)1, appeals of "affidavit student"

[eligibility] ineligibility determinations shall be filed by the resident keeping the student.




                                              48
SUBCHAPTER 6. ASSESSMENT AND CALCULATION OF TUITION



6A:22-6.1 Assessment of tuition where no appeal is filed



   (a) If no appeal to the Commissioner is filed by the parent, guardian, adult student or district

resident keeping an “affidavit” student following notice of a determination of ineligibility, the

district board of education may assess tuition for any period of a student’s ineligible attendance,

including the 21-day period provided by N.J.S.A. 18A:38-1 for appeal to the Commissioner.



       1. If the responsible party does not pay the tuition assessment, the district board of

education [The school district] may [obtain an order of] petition the Commissioner pursuant to

N.J.A.C. 6A:3 for [this purpose] an order assessing tuition, enforceable [pursuant to] in

accordance with N.J.S.A. 2A:58-10 through recording, upon request of the district board

pursuant to N.J.A.C. 6A:3-12, on the judgment docket of the Superior Court, Law Division[, by

filing a petition of appeal pursuant to N.J.A.C. 6A:3].



6A:22-6.2 Assessment of tuition where appeal is filed



   (a) If an appeal to the Commissioner is filed by the parent, guardian, adult student or district

resident keeping an “affidavit” student, where the [appellant] petitioner does not sustain the

burden of demonstrating entitlement to attend the schools of the district, or abandons the appeal

through withdrawal, failure to prosecute or any means other than settlement agreeing to waive or

reduce tuition, the Commissioner may order assessment of tuition for any period of a student’s



                                                49
ineligible attendance in a school district, including the 21-day period for filing of an appeal and

the period during which the hearing and decision on appeal were pending.

       1. Upon the Commissioner’s finding that an appeal has been abandoned, the district

board of education may remove the student from school and seek tuition for the period of

ineligible attendance pursuant to N.J.A.C. 6A:22-6.1(a). However, if the record of the appeal

includes a calculation reflecting the rate(s) of tuition for the year(s) at issue, the per diem rate of

tuition for the current year, and the date on which the student’s ineligible attendance began, the

Commissioner may order payment of tuition as part of his or her decision. If the record does not

include such a calculation, but the district board has filed a counterclaim for tuition, the

counterclaim shall proceed to hearing notwithstanding that the petition has been abandoned.



   [1]2. An order of the Commissioner assessing tuition is enforceable through recording, upon

request of the district board pursuant to N.J.A.C. 6A:3-12, on the judgment docket of the

Superior Court, Law Division, [pursuant to] in accordance with N.J.S.A. 2A:58-10.



6A:22-6.3 Calculation of tuition



   (a) Tuition assessed pursuant to the provisions of this section shall be calculated on a per

student basis for the period of a student’s ineligible enrollment, by applicable grade/program

category and consistent with the provisions of N.J.A.C. 6A:23-3.1. The individual student’s

record of daily attendance shall not impact on such calculation.



   (b) Nothing in this chapter shall preclude an equitable determination, by the district board of

education or the Commissioner, that, when the particular circumstances of a matter so warrant,



                                                  50
tuition shall not be assessed for all or part of any period of a student’s ineligible attendance in the

school district.




                                                  51

								
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