Frequently asked Questions about Special Education Law in New Jersey
I understand firsthand that going through dispute resolution proceedings can create a lot of stress, both emotionally and financially. Here are some frequently asked questions (FAQs) that clients have had concerning their due process proceedings.
The IEP says I have 15 days to file Due Process, what is the significance of this deadline?
If this is your child’s first IEP, then the deadline does not apply because the school district cannot provide special education and related services without parental consent. If this is a subsequent IEP, the 15 day deadline is important because you are deemed to have given consent unless you file a Due Process Petition on or before the 15th day. Thus, even if you do not sign the IEP, after 15 days, it is as if you had. You can still file a Due Process Petition but you will not have benefit of the “stay put” provisions of the IDEA, which require that (unless you and the school agree otherwise), your child remain in the program that was in effect before the dispute arose. This is particularly important when, for example, the school wants reduce services or change the placement, and you disagree with the change.
Are procedural violations enough to win my case?
Detailed procedural provisions lie at the heart of the IDEA. These processes are designed to guarantee that each student’s education is tailored to his/her unique needs and abilities. The formality of the Act’s procedures itself are a safeguard against erroneous decision making. Both Congress and the Supreme Court place great importance on the procedural provisions incorporated into the IDEA. Systematic or unreasonable delays in the formulation and implementation of IEPs violate the Act. Whether your case may be won on procedural violations alone will depend on whether the procedural violations resulted in your child being deprived of a Free Appropriate Public Education.
How much will resolving a dispute with my school district cost?
The variables that determine how much it will cost depend on the parties involved and the experts needed. If you and your school district can agree on issues and settle amicably, resolving the dispute will simply cost less. Litigation issues can be expensive and that is why I often work collaboratively with experts and non-lawyer advocates to help keep expenses to a minimum.
What if I am unhappy with the Administrative Law Judge’s Decision?
Final decisions by an Administrative Law Judge (ALJ) may be appealed by filing a lawsuit in state or federal court. The Supreme Court has instructed that district courts must conduct a two part inquiry when reviewing administrative decisions brought under the IDEA: First, has the State complied with the procedures set forth in the Act? And second, is the Individualized Education Program (IEP) developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? The Act requires that federal courts receive and review the records of the proceedings, consider additional evidence at the request of a party, and make an independent decision based upon a preponderance of the evidence.
Resources for Parents of Children with Special Needs
The following links may be helpful to parents who want to learn more about special education law.
- Individuals with Disabilities Education Act of 2004 (IDEA), 20 U.S.C. §1400, et seq – IDEA is the federal statute enacted to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and to ensure the rights of children with disabilities and parents of such children are protected.
- New Jersey Administrative Code for Special Education, N.J.A.C. 6A:14 – The New Jersey Administrative Code is similar to the IDEA, but is the State’s statute and is in some ways different from the IDEA. For example, the IDEA requires an initial evaluation be completed within 60 days of the parents having consented to the evaluation, unless a state has established a different timeline. New Jersey has established a different time line and allows 90 days, but also requires, if the student is eligible, that an IEP be developed and implemented within that time frame.
- Rehabilitation Act of 1973, 29 U.S.C. §701 – Section 504 of the Rehabilitation Act makes it illegal for federal agencies or programs/activities that receive federal financial assistance, including schools, to discriminate based upon disability. The Section 504 regulations require a school district to provide a “free appropriate public education” (FAPE) to each qualified student within the school district’s jurisdiction, regardless of the nature or severity of the disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student’s individual educational needs as adequately as the needs of nondisabled students are met.
- Parental Rights in Special Education (PRISE) – The PRISE booklet was developed by the New Jersey Department of Education, Office of Special Education Programs, in an effort to provide comprehensive up-to-date information and is periodically revised to reflect changes in the law and/or to provide additional useful information.
- The Office of Special Education Programs (OSEP) – OSEP is part of the U.S. Department of Education, and supports a comprehensive array of programs and projects authorized by the Individuals with Disabilities Education Act (IDEA) that improve results for infants, toddlers, children and youth with disabilities.
- OSEP Policy Letters (Including OSEP Memos and Dear Colleague Letters) – OSEP Policy Letters provide information, guidance and clarification regarding implementation of the Individuals with Disabilities Education Act (IDEA).
- The Office for Civil Rights (OCR) – OCR is part of the U.S. Department of Education, and its purpose is to ensure equal access to education, and to enforce civil rights in schools throughout the United States.
- The New Jersey Office of Administrative Law (OAL) – The OAL is an independent State agency that employs administrative law judges (ALJs) to provide an independent and neutral hearing. Requests for hearings are not made directly to the OAL. Hearing requests must be filed with the appropriate State agency; which in special education matters is the New Jersey Office of Special Education Programs.
- The New Jersey Office of Special Education Programs – The office ensures that students with disabilities receive appropriate educational services to enable them to achieve the same goals established for all students – success in postsecondary education, employment and life in the community.
- New Jersey District Court – Disputes regarding special education services that are not satisfactorily resolved through the administrative process may be appealed in state or federal court. The United States District Court for the District of New Jersey is the court in which a lawsuit regarding special education rights would be initiated. The website allows users to search the court’s rules, forms, dockets, cases, as well as providing additional information.
Call New Jersey Special Education Lawyer Lori Arons, Esq. Today to Schedule a Consultation
If you have a child with special needs and you are concerned their needs are not being adequately met, you should contact an experienced NJ special education attorney today. Lori is a skilled advocate with more than 20 years of experience practicing law, and is personally committed to helping children with special needs get the education to which they are legally entitled. Lori has been through the IEP process with her own children and understands how important it is for parents to ensure that their children have their educational needs met. To schedule a consultation with Lori E. Arons, Esq., call our office today or send us an email through our online contact form.