The Individuals with Disabilities Education Act (IDEA) with its federal implementing regulations, Title 6A Chapter 14 of New Jersey’s Administrative Code, and Section 504 of the Rehabilitation Act of 1973 are the relevant laws granting rights to student with disabilities.
The rights granted to disabled students by these laws are in addition to the rights granted to all students by other federal and state laws. In simple terms, a disabled student has other rights that are not related to his or her disability, such as limited privacy rights, that are additional protections. However, those rights are beyond the scope of this discussion.
INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)
The purpose of IDEA is to ensure that all children with disabilities have available to them a free appropriate public education (also known as a FAPE) that emphasizes special education and related services and is specifically tailored to meet the individual needs of the child.
The law also protects the rights of children with disabilities and their parents and guardians by granting them procedural protections, such as the right to file for due process.
The IDEA has the following tenets at its core:
Child Find Obligations: The school district is obligated to locate and identify disabled children, and provide them with appropriate educational services and instruction. All school districts are required to implement a Child Find procedure.
Notably, this provision of the law places the obligation on the school districts, not on the parents.
The reason for this, as courts throughout the Nation have recognized, is that the educators are the experts and will likely identify issues with a child’s learning before parents or guardians, who oftentimes have no background in education other than attending school.
Parent Participation: School districts must include parents in the decision-making process for their child’s special education services. For instance, a school district is required to provide parents with Notice, Evaluations, Individual Education Programs (IEPs), and access to their child’s student records. In addition, parents are members of the IEP team and are to be included in all decision-making.
Non-discriminatory Testing, Classification and Placement: A student with a disability who may be eligible for special education and related services must be evaluated by a qualified multi-disciplinary team that includes at least one teacher or specialist with specific knowledge of the student’s disability. Testing instruments must be validated and assess all areas of a suspected disability.
A failure by a school district to provide appropriate evaluations triggers the right to independent evaluations. A child may be independently evaluated by an appropriately credentialed professional who is not affiliated with the school district paid for by the school district.
Individualized Appropriate Education and Related Services: Students with disabilities must be provided with appropriate, data-based special education instruction and related services that are tailored to meet the individualized needs of the child. The instruction and services must be delivered by qualified personnel with the appropriate training and certifications. Transportation services, if necessary, are included as part of the overall program. All of this must be provided at no cost to parents.
An appropriate education is one that ensures a disabled child makes meaningful progress and achieves appropriately ambitious objectives in light of the individual student's potential. In other words, school districts must do more than provide a minimal education to a disabled student.
The school district delivers special education instruction and services through the development an Individualized Education Program (IEP) that is specifically tailored to the child's needs. The IEP is a written statement of the child's program that is developed by the IEP Team, which includes parents and guardians. Moreover, the IEP must include:
present levels of academic achievement and functional performance of the child;
the strengths and educational needs of the child;
annual educational goals and objectives that are measurable;
the special education and related services to be provided, including all accommodations and modifications to the program that are being given;
the dates for the initiation and length of services;
objective criteria and procedures to evaluate that the objectives are being met; and
a statement of transitional services.
In addition, school districts must provide parents with reporting on the student’s progress toward achieving the goals and objectives set forth in the IEP.
Least Restrictive Environment: Students with disabilities are to be educated with their non-disabled peers to the greatest extent possible in the Least Restrictive Environment (LRE). A disabled student must be given the necessary supports, modifications and accommodations to succeed in the LRE. Furthermore, a full continuum of alternate placements must be available to meet the child’s needs.
An example of the LRE is placement of a special needs student in general education classroom without any special education or supports. By way of example, let’s say that a student has communication disorder. This child may have multiple classes throughout the day where he has no supports or special education instruction because they are not needed. This is the LRE for this individual student.
On the other hand, the same student is pulled from his one of his general education classes to attend a special education which addresses his disability. This is an example of a more restrictive environment because the child is being pulled from a general education class.
The most restrictive environments are those where a student is removed the local school and placed in an alternative school, private school or on home instruction.
Procedural Safeguards and Due Process: The IDEA requires that disabled children and their parents/guardians are given the opportunity to participate in the special education decision-making process and are treated fairly. Procedural Safeguards include the parents’ rights to prior notice of each step in the process, descriptions of and consent for evaluation procedures and other actions, and access to impartial mediation and legal due process hearings in case of a disagreement.
Due Process includes the right to disagree with school officials and appeal decisions when parties disagree. Due Process challenges are initiated by the filing of a Due Process Petition with the NJ Office of Special Education. The hearings are held before the NJ Office of Administrative Law. Prior to the commencement of the hearing, there will be opportunities for early resolution through mediation and a mandatory settlement conference. Nevertheless, this is a complicated legal proceeding and parents should seriously consider hiring an attorney experienced in special education law to represent them because the school board is sure to be represented by counsel.
NEW JERSEY ADMINISTRATIVE CODE
Chapter 14 of the New Jersey Administrative Code (N.J.A.C. 6A:14) addresses the duties and responsibilities of local and state education agencies to educate students with disabilities under the IDEA. The Code specifically dictates how the IDEA and its companion regulations are implemented by NJ DOE and local NJ school districts.
The Code covers in detail everything from how students are to be identified, located, and tested to the size of classrooms for special needs students. Because of this, it is the Code that parents and guardians often see cited to in the various legal documents they receive from school districts.
SECTION 504 OF THE REHABILITATION ACT OF 1973 (Section 504)
Section 504 is a federal law that prohibits discrimination based on disability by entities receiving federal funding, including public schools and universities. In specific instances, Section 504 can provide broader protections to disabled students than the IDEA. For instance, students that do not fit into a disability category listed in IDEA may be eligible under Section 504’s broader definition of disability.
Section 504 defines disability as follows:
a person who has a physical or mental impairment that substantially limits one or more major life activities;
has a record of such impairment; or
is regarded as having such an impairment.
Major life activities are defined under Section 504 to include but not limited to: caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Under Section 504, school districts must identify and evaluate a child if there is a reason to believe a disability may be impacting his or her education. The school district is not required to have a separate evaluation process for Section 504. It may use the same evaluation process as it does for IDEA.
The district must answer the following questions through the evaluations:
Is there an impairment?
Does the impairment substantially limit a major life activity?
What are the accommodations or services that are needed to keep that impairment from substantially limiting the major life activity?
A student may be eligible for services if his or her disability limits the ability to attend school or participate is school activities, even if the impairment does not impact the ability to learn. These services are delivered through a Section 504 Accommodation Plan.
All school districts must designate a Section 504 Coordinator. Districts must also provide the following specific safeguards: notice, opportunity for parents to examine student records, impartial hearing with opportunity for parents to participate, representation by counsel, and an appeal procedure.
Section 504 hearings in NJ are essentially same as Due Process Hearings for alleged violations of the IDEA. A school district has the burden of demonstrating that it provided a FAPE for a qualified student.
If your child is struggling in school due to a disability, please contact the Law Office of Joseph D. Castellucci, Jr. today. We possess decades of experience in handling all school law and special education matters. We are a boutique law firm practicing in Morristown, New Jersey with a focus on providing our clients with personalized and compassionate representation with driven results. Contact our office today to schedule a consultation: (973) 285-3253.
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