in Special Education Law
The attorneys of Javerbaum Wurgaft’s Disabilities Law Group are renowned for their expertise and experience in counseling and representing individuals with disabilities and their families. They are available to capably handle a variety of cases including access to early intervention, special education, transition services and residential placements. We represent families through the IEP process, Section 504 requests, discipline issues, suspension and expulsion proceedings, bullying complaints, mediation and due process.
FREQUENTLY ASKED QUESTIONS:
The following are some of the questions and concerns you may have with respect to special education services provided by school districts and the IEP (Individualized Education Program) process. Please note that this is simply meant to be informative and not intended to be a substitute for consultation with a competent special education attorney. Just like the IEP, each case is specific to the individual student and circumstance.
What educational services is my child entitled to?
Under the Individuals with Disabilities Education Act (“IDEA”), which is a federal law, and New Jersey state law, a child is entitled to receive a Free Appropriate Public Education (“FAPE”) in the Least Restrictive Environment (“LRE”). What constitutes FAPE depends on the child’s disability and his or her individual needs. A child’s needs are unique which is why the term IEP stands for “Individualized Education Program.” This means that the program must be specifically tailored to meet the child’s unique needs. A “one size fits all” program is not appropriate because it fails to take into account the child’s individual programming needs.
The LRE is the least restrictive environment in which a child can receive FAPE. If a child can receive FAPE in the local public school, than by definition this is the LRE. However, if the child cannot be appropriately educated in his or her local public school, then the LRE can be a private day program, residential program or even home instruction. The important point to remember is that the interplay between FAPE and LRE requires that the child be educated in the least restrictive appropriate setting. If your district is unable to appropriately provide your child with FAPE in the public school setting, it may have to pay for a private day or residential placement to meet your child’s needs.
There are a range of services that a child with special needs may receive, including, but not limited to: 1:1 instruction, behavioral services, speech and language therapy, occupational therapy, physical therapy, a classroom shadow or aide, assistive technology devices, etc. There are an equally wide range of accommodations and modifications to the general curriculum that a child with special needs may receive, including, but not limited to: preferential seating, extra time on tests, modified assignments, books on tape, etc.
What is an IEP?
The Individualized Education Program (“IEP”) is referred to as the “roadmap” to the education of a child with special needs. Legally, in New Jersey, an IEP may not be created that lasts for longer than one year, although in certain circumstances, the IEP can extend beyond one year if “stay put” is invoked (this is discussed below in more detail). The IEP must be individually tailored to the child’s unique needs. Each IEP must include the child’s present levels of academic achievement and functional performance, measurable annual goals & short term objectives, transition goals & services (starting at age 14), the child’s placement and the rationale for any deviation from the LRE, and all related services, accommodations and modifications to be received. If a service, accommodation or modification is not in the IEP, the school district is not obligated to provide it, so it is critical that everything be written in the IEP.
Who is part of the IEP Team?
The IEP Team is made up of professionals who have evaluated the child and have provided input into creating the IEP as well as individuals who have been, or will be, working with your child. The IEP Team can be made up of: Director of Special Services, Case Manager, Special Education teacher, General Education teacher, Occupational Therapist, Physical Therapist, Speech and Language Therapist, and other individuals who have knowledge of your child and can aid in the creation of the IEP.
Most importantly, the parents are part of the IEP Team. It is imperative that you share your concerns, ideas and suggestions with the rest of the IEP Team and that the IEP Team in return consider your input. The law recognizes parents as key players in this process and important members of the IEP Team.
What happens if I don’t consent to the IEP and don’t want to sign it?
If the district has presented its first IEP for your child (i.e. there are no prior IEPs in place) the district cannot implement any of the proposed educational services unless you sign the IEP. Note: You can consent to the implementation of some of the proposed services while rejecting others. However, if your child already has an IEP, each year when a new IEP is proposed, the new IEP will automatically go into effect 15 calendar days after you receive a final copy regardless of whether or not you sign it, unless you file for mediation and/or due process (See below).
How do I preserve my child’s current program if the district is offering a new IEP with different services?
In order to preserve your child’s current program, what is referred to in the law as “stay put”, you must file for mediation and/or due process before the expiration of 15 calendar days after you received the final IEP. If you do not file for mediation/due process within these 15 days, the new IEP will automatically take effect even if you have not signed it and you will lose the opportunity to preserve your child’s previous IEP. Note: Writing on the IEP that you do not agree, writing a letter to the school district that you object or anything else short of filing for mediation or due process is not sufficient to invoke “stay put.”
When should I prepare for my child’s transition?
One of the IDEA’s primary purposes is to prepare children with disabilities for post-secondary education, employment and independent living. Beginning with the IEP in place when the child is 14, the school district must develop a course of study and related strategies and activities designed to assist the child in developing goals related to training, education, employment and independent living. When the child turns 16, the IEP must also include specific transition services in order for the child to reach these goals.
When should I consult an attorney?
You can consult an attorney at any stage of the IEP process. However, you will gain the most benefit from consulting with an attorney early on in the process. An attorney can help you understand your rights as they relate to your child’s needs and help you develop a strategy with which you can advocate for your child.
LAWS AND RIGHTS AFFECTING INDIVIDUALS WITH DISABILITIES
The Individuals with Disabilities Education Act (IDEA)
Federal law mandating that all children, regardless of disability, are entitled to a Free Appropriate Public Education (FAPE) in the least restrictive environment (LRE).
§504 of The Rehabilitation Act of 1973
Federal law which mandates all federal government agencies, and agencies with federal government contracts, to take affirmative action to employ people with disabilities. It also protects otherwise qualified people with disabilities from being denied services or benefits from a program receiving federal money.
The Americans with Disabilities Act (ADA) and
Americans with Disabilities Amendment Act (ADAAA)
Federal civil rights law which guarantees individuals with disabilities equal opportunity in employment, public accommodations, state and local government services, transportation, and telecommunications.
New Jersey Law Against Discrimination (NJLAD)
New Jersey state law which prohibits discrimination in employment, housing, places of public accommodation, credit and business contracts on the basis of race, creed, color, national origin, nationality, ancestry, age, sex, familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical cellular or blood trait, genetic information, liability for military service, mental or physical disability, perceived disability, or AIDS and HIV status. Note: There are exceptions to these prohibitions.
The Developmental Disabilities Assistance and Bill of Rights Act of 2000
Federal law mandating that individuals with developmental disabilities have the right to appropriate treatment designed to maximize the individual’s potential.
New Jersey state law requiring staff working at public or private facilities that serve people with developmental disabilities or brain injuries to call 911 in cases of medical emergency.
New Jersey’s Autism Insurance Reform Bill (P.L.2009, c.115)
New Jersey state law which requires state-regulated health benefits coverage for certain therapies that treat autism and other developmental disabilities.
Central Registry of Offenders Against Individuals with Developmental Disabilities (S825)
New State law signed by Governor Christie on April 30, 2010, creating a registry of offenders who harm people with developmental disabilities and barring them from working in programs funded by the state Human Services Department. The law takes effect in September 2010.
Patient Protection and Affordable Care Act (H.R. 3590)
Federal law, signed into law by President Barak Obama on March 23, 2010, includes an amendment requiring insurance plans to provide behavioral health treatments, such as ABA. Plans in the health insurance exchange created by the bill will be required to cover behavioral health treatments as part of the minimum benefits standard.
The Fair Housing Act
Federal law that prohibits discrimination in the sale or rental of housing. Refusal to allow the modification of a home to provide physical access is also discriminatory
The Motorized Wheelchair Lemon Law
Requires manufacturers to give customers warranties of at least one year that cover defects which impair the use, value or safety of a wheelchair or scooter. After three unsuccessful attempts at repairing the same problem with the wheelchair or motorized scooter or if the same is out of service for a total of twenty days, the customer may be entitled to a replacement, refund, or early lease termination, minus a reasonable allowance for use.
The Snow Removal Act
The person who owns or controls a public parking area is responsible for assuring that the restricted spaces (such as handicapped parking spaces) remain free from obstruction. This includes shopping carts and other debris. Ice and snow must be removed within 24 hours after the weather condition has ceased.
Open Public Records Act (OPRA)
2001 New Jersey state law requiring most branches of state, county, and municipal government to provide citizens with the opportunity to inspect, copy, or examine government records. It does, however, allow public agencies to protect a citizens’ personal information.
Mental Health Parity Act
Federal law which prevents group health plans of employers with more than 50 workers from placing dollar limits on mental health benefits that are lower than annual or lifetime dollar limits for medical and surgical benefits offered under the plan. This law does not, however, require group health plans to include mental health coverage.
Health Insurance Portability and Accountability Act (HIPAA)
Federal law which establishes national standards to protect individuals’ medical records and other health information. Insurance carriers, healthcare clearinghouses, and healthcare providers are required to comply with its privacy standards. It also gives consumers the right to inspect, copy, or amend their medical records, and to limit disclosure of information contained therein.
Air Carriers Access Act
Federal law requiring airlines to accommodate passengers with disabilities. Prevents airlines from refusing to transport a passenger solely because of his disability; limits the circumstances under which passengers with disabilities must provide information about their disabilities in advance to air carriers; states that assistive devices do not count as passenger baggage; and sets accessibility guidelines for airplane facilities. Airline personnel are not required to provide personal care assistance, just the same level of care they provide to all of their passengers. However, if a passenger requires an attendant, the airline must allow the attendant to fly free of charge. Airline do not have to transport an individual who may endanger the health or safety of others.
The Ticket to Work Incentives Improvement Act
Federal law that increases choice in obtaining rehabilitation and vocational services; removes barriers that require people with disabilities to choose between health care coverage and work; and insures that more individuals with disabilities have the opportunity to work.
Family Support Act
NJ State law creating family-driven Regional Family Support Planning Councils to assist families in making service decisions that best meet the needs of their family members with disabilities. It establishes a system of family support within the Division of Developmental Disabilities (DDD) which includes financial assistance, service coordination, and other services and trainings.
Special Education Resources on the Web
Special Education Websites:
Wrights Law: www.wrightslaw.com
- Comprehensive website with easily accessible information about special education law.
Statewide Parent Advocacy Network: www.spannj.org
- Not-for-profit organization providing information to families about special education law.
Technical Assistance ALLIANCE for Parent Centers: www.taalliance.org
- A partnership of parent centers funded by the U.S. Dept. of Education’s Office of Special Education Programs (OSEP) to provide information and assistance about Special Education.
NJ Department of Education – Special Education Programs: www.state.nj.us/education/specialed/
Education Law Center: www.edlawcenter.org
- Not-for-profit organization providing representation to indigent families and advocating for systemic changes to the way education is delivered in NJ.
National Dissemination Center for Children with Disabilities: www.nichcy.org
Yellow Pages For Kids With Disabilities: www.yellowpagesforkids.com
The Arc of NJ: www.arcnj.org
Children & Adults with AD/HD: www.chadd.org
National Mosaic Down Syndrome Association: www.mosaicdownsyndrome.com
Bringing Up Down Syndrome (BUDS): www.buds-sj.org
Autism NJ: www.autismnj.org
Asperger Syndrome Education Network (ASPEN): www.aspennj.org
The International Dyslexia Association: www.interdys.org
Dyslexia New Jersey: www.dyslexia-teacher.com
Epilepsy Foundation of NJ: www.efnj.com
Cerebral Palsy Association of NJ: www.cpofnj.org
Spina Bifida Resource Network: www.thesbrn.org
NJ Speech-Language-Hearing Association: www.njsha.org
Tourette Syndrome Association of New Jersey: www.tsanj.org