Parents' Guide to Special Education Law
Every child is entitled to a free and appropriate public education in the United States. But if you’re the parent of a child with special needs, you know that securing the best support services can be challenging. Understanding special education law can arm you with the information necessary to advocate for your child effectively. It will also help you decide when to seek legal help if conflicts arise.
The experienced attorneys at Susan Clark Law Group LLC have prepared the following guide to special education law in New Jersey for you. To learn more about how our special education lawyers can help you, contact us today for a free consultation.
New Jersey Special Education Law
More than 241,000 students between the ages of three and 21 receive special education services in New Jersey. The amount and type of services depends on the student’s specific disability and how it affects his/her academic performance.
Students with disabilities are protected under federal and New Jersey special education law. The Individuals with Disabilities Education Act (IDEA) is the federal law that guarantees that children with disabilities are provided with an educational program tailored to meet their unique needs. It also requires school districts to evaluate students with a suspected disability at no cost to parents.
In addition, special education under IDEA must be provided in the least restrictive environment (LRE). This means that students with special needs should be in the classroom with students without disabilities as much as possible.
Students who may be eligible for special education services under IDEA include those with:
- Developmental delays
- Intellectual disability
- Other health impairment (e.g., ADHD)
- Specific learning disability (e.g., dyslexia, dysgraphia, dyspraxia, etc.)
- Emotional disturbance
- Multiple disabilities
- Speech or language impairment
- Visual impairment (including blindness)
- Hearing impairment
- Orthopedic impairment
- Traumatic brain injury (TBI)
It’s important to understand that a diagnosis alone is not enough to guarantee accommodations under IDEA. You must be able to show that your child’s disability is impeding his or her ability to succeed in school.
It’s equally important to understand that a child who does not meet the IDEA criteria is not barred from receiving educational supports. Section 504 of the Rehabilitation Act of 1973 allows for students who are having learning, behavioral, or health difficulties in a general education classroom to receive modifications if their differences impact a “major life activity.” This could range from toileting needs to challenges with anxiety, concentrating, and communicating.
What Are the Main Differences Between IDEA and Section 504?
While IDEA and Section 504 both provide for students to receive accommodations at school, there are important differences.
Section 504 provides a much broader definition of a disability than IDEA. A variety of conditions may impact a “major life activity” under Section 504. IDEA has 13 specific disability categories.
IDEA has much more stringent guidelines. IDEA outlines specific procedures and timelines that school districts must meet to accommodate students with special needs. Section 504 does not require the same degree of monitoring to ensure that modifications are being implemented.
Children who do not need special education can still get services through Section 504. Under IDEA, students only qualify if they have a disability that is adversely affecting their academic performance.
IDEA requires a child study team provide a comprehensive evaluation of the child. Under Section 504, evaluations can come from other sources provided by the parent.
An individualized education plan (IEP) is required under IDEA, but Section 504 just calls for some type of plan to be in place. An IEP provides customized special education and related services to meet the child’s needs. A 504 Plan may be written or unwritten, but calls for changes to the learning environment to maximize the child’s ability to learn.
Stay-put rights are only available under IDEA. A parent must be notified 15 days prior to any changes being made to the IEP plan. If the parent disagrees with the proposed changes, he or she can invoke “stay-put rights” to leave the existing plan in place until the dispute can be resolved. Students with 504s do not have stay-put rights, though parents must be notified of any changes to the plans.
Common Types of Special Education Disputes in New Jersey
Although children with disabilities are afforded many protections under the law, parents and schools can run into conflicts in several areas. Disputes often arise when:
- Schools and parents disagree over the types and/or amounts of school services that a child needs. Periodic reviews of IEPs and 504s are required to identify new needs or remove services for issues that no longer impact the child. Special education disputes typically arise when a school seeks to remove services that parents feel are necessary for their child’s success.
- The parents disagree with the school’s evaluation. School districts must provide an Independent Education Evaluation (IEE) at no cost when parents disagree with the findings of a school’s child study team.
- There are questions of eligibility. There are criteria that must be met to qualify for special education services under IDEA. Students who don’t qualify may still have rights to educational support through Section 504. Disputes can occur over whether a child meets the eligibility requirements or has been misclassified.
- Placement is a problem. In New Jersey, the IEP team determines a child’s school and class placement. Parents have the right to visit the school placement. If they do not approve of the placement, they can invoke their child’s stay-put rights and request due process or mediation to resolve the placement concerns.
- Deadlines are missed. New Jersey school districts have a responsibility to ensure that students are evaluated for and provided with necessary accommodations according to specific timeframes set by law. When deadlines expire or meetings keep getting pushed back, parents sometimes need help getting the schools to meet their duties.
Resolving NJ Special Education Disputes
Ideally, parents and schools are able to work together to develop a special education program that is customized to meet the child’s needs. But if collaborative efforts break down, parents can take procedural steps to reach a resolution.
After filing a complaint, there are several paths that the dispute resolution process may take:
- Resolution meeting: An informal meeting between parents and a school official in which both parties come to an agreement outside of the legal process. Parents do not have to agree to a resolution meeting and may request mediation instead.
- Mediation: During mediation, parents (and a lawyer, if they hire one) meet with school officials and two unbiased mediators from the New Jersey Department of Education’s Office of Special Education Programs. The mediators try to help the two parties resolve their conflicts amicably. If no agreement can be reached, parents can file a complaint for a due process hearing.
- Due process hearing: Similar to a trial, a due process hearing occurs before an administrative law judge. Both parties will present evidence and arguments to support their cases. The judge’s decision goes into effect immediately after the hearing is concluded, even if a parent decides to appeal.
Although a special education attorney is not required to represent you through any aspect of the dispute resolution process, the lawyers at Susan Clark Law Group LLC highly recommend that you schedule a free consultation with one before taking on the process alone.
Advocacy for Special Education in New Jersey is Critical
As a parent, you will always be your child’s best advocate. But when it comes to special education services, you may need the help of a New Jersey lawyer (and others) to fight for the services your child is entitled to. Recent news reports indicate that New Jersey’s special education system has not been meeting the needs of its citizens.
The U.S. Department of Education is currently scrutinizing the state for failing to meet deadlines for resolving disputes, according to an article in NJ Spotlight. Statistics show that only 52 out of 1,300 due process complaints filed in New Jersey in 2016-2017 were resolved within the mandatory timeframes. That’s fewer than five percent of all cases.
In addition, there are questions across multiple school districts of whether special education students are truly being served in the least restrictive environments in New Jersey.
The good news is that the special education community is a very supportive one. Whether you’re a new member of the special needs community or a veteran, it’s always important to remember that you’re not alone.
Numerous resources are available to you. If you’re struggling to understand the special education system, first reach out to the school. You can also try:
- Talking to parents of children with disabilities: They often know of professionals, organizations, and other community contacts to help answer your questions.
- Meeting with a special education advocate: A special education advocate is not a lawyer. However, advocates are very knowledgeable about the public school system and a student’s special education rights. He or she can help you prepare for IEP or 504 meetings, attend the meetings with you, make suggestions about accommodations, and refer you to specialists in the area who may help evaluate your child. However, an advocate cannot and should not provide legal advice.
- Gathering professional opinions: Listen to your speech pathologists, occupational therapists, psychologists, physicians, physical therapists, and counselors. Anyone who works with your child can provide knowledgeable insight that could help you craft the best IEP or 504 possible for your child.
- Meeting with a special education lawyer: An attorney can tell you whether your child’s rights have been violated and advise you on how to address the problem.
Get Help from a NJ Special Education Attorney Today
If you have a child with special needs and are struggling to navigate the special education process, meet with a skilled attorney at Susan Clark Law Group LLC today. With years of experience representing clients of children with disabilities, our dedicated legal team is committed to enforcing the rights of all New Jersey students.
Call or contact us for a free consultation.