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Special Education Law Due Process

Special education laws, such as the Individuals with Disabilities Education Act of 2004 (IDEA), and the New Jersey Administrative Code for Special Education confer rights and remedies designed to ensure that each child has an individualized program of services, modifications, accommodations and supports that enable them to learn and succeed. Parents’ right to be equal partners with the school system is a key feature of the law; safeguarded by the right to file for an impartial due process hearing. Parents are the primary enforcers of the Individuals with Disabilities Education Act (IDEA) through due process and private actions. Due process is the method by which parents may challenge the school’s decisions, and these procedures must be followed before a civil action may be filed in state or federal court.

While the IEP process is designed to result in a favorable plan for a child with special needs, parents often rightfully question whether their child’s IEP is appropriate or adequate to meet their particular challenges and needs. Disputes can arise at various stages of the process and may pertain to referral for evaluation, evaluations, eligibility, or the IEP itself. Disputes between parents and schools can be complicated, and resolving these disputes is often a multi-step process with many different procedural requirements. If you think you may want to challenge your child’s school, you should not delay in contacting an experienced NJ special education lawyer today. Lori E. Arons, Esq. regularly and successfully stands up for the rights of both children and parents under the special education laws. Even if an IEP has not been created, you may still have due process rights, so it is important to speak with an attorney.

Due Process

Most Common Areas in Which Disputes Arise

There are many steps in the IEP process during which disputes can arise between parents and schools. Some of the most common areas for disputes include the following:

  • Referral — The IEP process begins with the referral of a child to the schools’ Child Study Team for an initial comprehensive evaluation in all areas of suspected disability. In some cases, a parent wants their child referred to the Child Study Team, but the school disagrees and instead implements general education strategies and refuses to conduct an evaluation.
  • Evaluations — Evaluations and re-evaluations are used to determine eligibility and programming, and are regulated under the IDEA. Parents who disagree with the results of an evaluation have the right to “second opinion” and may request an Independent Educational Evaluation (IEE) at public expense. The school is obligated to either pay for the IEE, or file a due process petition challenging the parents’ request.
  • Eligibility — To be eligible for special education, a child must have a disability and be in need of special education and related services. If a child has a disability but does not need special education services, the child is not eligible for special education under IDEA, but may be eligible for protections under Section 504 of the Rehabilitation Act. Disputes often arise regarding eligibility, or with respect to the classification category.
  • Programming — Parents may disagree with many aspects of the child’s education program and question whether it is sufficiently individualized to meet their child’s unique needs. For example, disputes may arise regarding the related services offered, whether the child requires 1:1 instruction or an aide, or whether the child requires extended school year services.
  • Placement — Decisions about placement are made after the child’s IEP is developed. Schools may not predetermine placement, Placement decision are made by the IEP team, which includes the parents. School districts are required make available a range of placement options, known as a continuum of alternative placements, to meet the unique educational needs of students with disabilities. It is not unusual for parents and schools to disagree as to placement.
Special Education Law Due Process

Understanding the Dispute Resolution Process

Parents have the right to file a request for due process if they disagree with the school’s decision regarding their child. The IDEA includes rules of procedure for resolving disputes between parents and schools. A request for due process is the written document used to request mediation and/or a due process hearing in order to resolve a dispute related to the identification, evaluation, or educational program of a child with a disability, or the provision of a free, appropriate public education (FAPE). Each child is unique, and the course of action taken may vary from case to case. Some of the steps you may encounter are:

  • Participate in a Resolution Meeting
  • Participate in Mediation
  • Participate in a Due Process Hearing
  • File a Civil Action in State of Federal Court

What is Mediation?

Mediation is a voluntary process that is available to resolve disputes. When you engage in mediation, you will meet with school representatives and a mediator provided by the State. The mediator is not a judge and has no decision making power; their role is simply to facilitate negotiations, and draft an agreement if one is reached. You have the right to be represented throughout mediation proceedings by an experienced special education lawyer who can help present your point of view effectively, advise you whether to accept the terms of any proposed offers, and assist in negotiating an enforceable settlement agreement. While mediation is not required, it can be a valuable tool in reaching a favorable agreement with the school without the need for a formal due process hearing.

Most Common Areas in Which Disputes Arise

What is a Due Process Hearing?

A due process hearing is a formal adversarial trial before an Administrative Law Judge (ALJ). At a hearing, the ALJ will listen to testimony from witnesses, including expert witnesses, and will receive documentary evidence each side presents to support their position. The ALJ will consider the testimony and documentary evidence and issue a written decision. If you disagree with the ALJ’s decision, you have the right to appeal the decision by filing a civil complaint in state or federal court. You cannot file a complaint in state or federal court before exhausting administrative remedies by having your case first heard by an ALJ at the Office of Administrative Law.

Call for a Consultation with Attorney and Advocate Lori E. Arons, Esq. Today

Resolving an IDEA dispute through mediation or a due process hearing can be intimidating and complicated, so it is imperative that you contact a highly experienced New Jersey special education attorney for assistance. Lori E. Arons, Esq. has helped many parents and their children fight for the services they deserve, so please call for help today at 201-388-9533.

Understanding IEP Due Process


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