MOVING IN NEW JERSEY WITH AN IEP
Are you moving in New Jersey with an IEP? Moving gives rise to a lot of questions and uncertainty. What happens when you transfer from one New Jersey school to another, or from out-of-state? What are your rights? What if your child is in an out-of-district placement, do you have “stay put” rights? Is the new district required to fund a private out-of-district placement when you move?
Special education is governed by both Federal and State Law. The Individuals with Disabilities Education Act (IDEA) is the Federal Law that promises all qualified students a Free Appropriate Public Education (FAPE). The IDEA at 20 U.S.C. 1414 (d)(2)(C)(i) addresses what happens to the Individualized Education Program (IEP) when children transfer school districts:
Transfer Within the Same State: “In the case of a child with a disability who transfers school districts within the same academic year, enrolls in a new school, and who had an IEP that was in effect in the same state, the LEA (school district) shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previous IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.” 20 U.S.C. 1414 (d)(2)(C)(i)(I)
Transfer Outside State: “In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in another state, the school district shall provide such child with a free appropriate public education, including services comparable to those described in the previous IEP, in consultation with the child’s parents until such time as the district conducts an evaluation, if determined to be necessary, and develops a new IEP, if appropriate, that is consistent with Federal and State law.” 20 U.S.C. 1414 (d)(2)(C)(i)(II)
State law also governs, but cannot provide less than what the federal law provides. The New Jersey Regulations set forth more particularly what happens when a child with an IEP moves into a New Jersey school district, whether moving from one district to another, or from another state. The regulation at N.J.A.C. 6A:14-4.1(g) provides:
When a student with a disability transfers from one New Jersey school district to another or from an out-of-State school district to a New Jersey school district, the child study team of the district into which the student has transferred shall conduct an immediate review of the evaluation information and the IEP and, without delay, in consultation with the student’s parents, provide a program comparable to that set forth in the student’s current IEP until a new IEP is implemented, as follows:
1. For a student who transfers from one New Jersey school district to another New Jersey school district, if the parents and the district agree, the IEP shall be implemented as written. If the appropriate school district staff do not agree to implement the current IEP, the district shall conduct all necessary assessments and, within 30 days of the date the student enrolls in the district, develop and implement a new IEP for the student.
2. If the student transfers from an out-of-State district, the appropriate school district staff shall conduct any assessments determined necessary and, within 30 days of the date the student enrolls in the district, develop and implement a new IEP for the student.
The Federal and State laws address what happens if you are moving with an IEP, but they do not expressly address the issue of “stay put” when a family moves. This is where case law comes in as Courts interpret statutes and regulations. New Jersey courts have determined that while the “stay-put” provision is an important procedural safeguard, it does not apply in every situation where a parent and school district have a dispute. The “stay-put” provision is implicated when there is a unilateral act by a school district that is being imposed upon a student. When a family decides to move to another school district, they have accepted some amount of discontinuity in their child’s education and foregone the status quo by voluntarily changing school districts. In that circumstance, it is the IDEA at 20 U.S.C. 1414 (d)(2)(C)(i) as set forth above, rather than the “stay put” provision, that balances the goal of maintaining educational consistency.
If you are moving in New Jersey with an IEP and need help navigating the process of obtaining a Free Appropriate Public Education for your child, Lori E. Arons, Esq. is available to help. Contact Lori today by calling 201-388-9533 or by using the Contact Us form.