Tools for Meeting Life’s Challenges
New Jersey Special Education Law
Lisa Krizman
Lisa Krizman Esq., LLC
Cherry Hill, NJ
November 2013
Presentation Today
I. What’s Special Education About?
II. What YOU need to know
III. Strategies and Tips
Services by Age
• New Jersey Department of Health: “Early
Intervention” Services - Birth to Age 3.
New Jersey Department of Education:
• “Special Education” Preschool Disabled - Ages 3
to 5.
• “Special Education” School Age Disabled - Ages
5 to 21.
Early Intervention
Early intervention is a system of services that helps babies
and toddlers up until age 3 with developmental delays or
disabilities such as issues in:
•physical (reaching, rolling, crawling, and walking)
•cognitive (thinking, learning, solving problems)
•communication (talking, listening, understanding)
•social/emotional (playing, mood)
•self-help (eating, dressing, toileting).
Examples of Early Intervention Services
•
•
•
•
•
•
Assistive technology devices
Audiology, vision, medical, nutrition evaluations
Speech and language, OT, PT, nursing services
Counseling and training for a family
Psychological assessment and services
Service Coordination; referrals, resources
What is “Special Education?”
A public education, offered free of charge to
parents of children with disabilities, ages 3 to
21, composed of specially designed
instruction and related services to meet the
unique needs of a student with a disability
that adversely affects the student’s
educational performance. N.J.A.C. 6A: 14-3.5c; The
Individuals with Disabilities Education Act 1975, as amended, 2004
(“IDEA”).
Basic Principles of The Individuals with Disabilities
Act (“IDEA”):
Free Appropriate Public
Education (“FAPE”)
Individualized Education
Program (“IEP”)
The state board of education must •
provide children with disabilities with
a Free Appropriate Public Education
(“FAPE”):
•
•
•
•
The IEP is a detailed written
document that is prepared at a
meeting between school
representatives and the parents of
the child, called the “IEP Team” or
At public expense;
“Child Study Team” in New Jersey.
Under public direction;
According to the standards of the • It is the primary mechanism for
delivering the FAPE to the child.
state educational agency;
• Present levels, goals and objectives.
Provided in conformity with an
individualized education program
N.J.A.C. 6A; 14-3.7; 20 USC 1414(d)(1)
(the IEP).
(B); Susan N. v. Wilson Sch. Dist. 70 F. 3d
751, 756 (3d Cir. 1995).
Current IDEA Standard
for FAPE
The relevant inquiry is whether the IEP confers
a meaningful educational benefit and
significant learning, which is gauged in
relation to the child’s unique potential.
Ridgewood Board of Education v. N.E., 172 F.3d 238, 247 (3rd Cir. 1999);
Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 185 (3rd
Cir. 1988).
The “New” Definition of “Education”
• Education encompasses more than just academic
learning; it includes social, emotional, and
communication needs, and self care activities of daily
living like toileting and feeding. Kruelle v. New Castle County
School District, 642 F.2d 687 (3rd Cir. 1981).
• In 2004, it also includes “functional” achievements
necessary to enable the child to progress to post
school activities, post secondary education, vocational
education, employment, independent living, and
community participation. 20 U.S.C. 1414.
IDEA: Least Restrictive Environment (“LRE”)
The FAPE must be provided in the “least restrictive environment” (“LRE”):
“To the maximum extent appropriate, children with disabilities…are
educated with children who are not disabled, and special classes, separate
schooling, or other removal of children with disabilities from the regular
educational environment occurs only when the nature or severity of the
disability of a child is such that education in regular classes with the use of
supplementary aids ands services cannot be achieved satisfactorily.” 20
U.S.C.A. 1412 (a) (5)(A).
There is a strong legislative presumption in favor of integrating disabled
children within regular classrooms. Oberti v Board of Education of Clementon
School District, 995 F. 2d 1204 (3d Cir. 1993).
The IEP
• For what disabilities will my child be
“classified” for?
• What kind of services will my child get?
• How many hours?
• What type of supports?
• Where will my child be educated? What
school? Type of classroom? (the “placement.”)
Classification for Special Education under
IDEA
A student shall be eligible The 14 classifications of disabilities:
for special education and
• Auditorily impaired
related services if the
• Visually Impaired
student has one or more
• Cognitively impaired
disabilities defined below, • Communication impaired,
AND the disability adversely • Emotionally disturbed
• Orthopedically impaired
affects the student’s
• Other Health Impaired (chronic illness)
educational performance
AND the student is in need • Austistic
• Specific learning disability
of special education and
• Traumatic brain injury
related services.
N.J.A.C 6A; 14-3.5 (c )
•
•
•
Preschool Disabled
Social Maladjustment
Multiply Disabled
N.J.A.C. 6A: 14-3.5c.
The Services
•
•
•
•
•
•
•
•
Specialized transportation and equipment
Aides, Specialized Teachers and Consultants
Speech, OT, PT
Social Skill Instruction
Modified Academics and Physical Ed.
Counseling
Behavioral Instruction
Others
The Continuum of Placements N.J.A.C. 6A: 14-4.3(a)
•
•
•
•
•
Regular class with supplementary aids and services
Resource classrooms
Special education program in local school district
Special education program in another school district
Approved private school for the disabled in the
continental United States
• Accredited “Naples Act” school (N.J.A.C. 6A: 14—6.5)
• Other programs including community rehab program,
individual instruction at home, or other appropriate
settings.
Determining the Placement
1. Can the child be mainstreamed in regular classroom
with use of supplementary aids?
2. If placement is necessary to benefit the child
educationally, has the school mainstreamed the child
to the maximum extent appropriate?
3. For both the child and other children in the classroom,
do the benefits of mainstreaming outweigh the
possible negative effects of inclusion?
Oberti v. Board of Education of Clementon School District, 789 F. Supp.
1322, 1331 (D.N.J. 1992), aff’d 995 F. 2d 1204 (3d Cir. 1993).
Who is responsible to pay for Educational
Expenses?
• School districts are responsible for special education and
related services: school and transportation; “related” services
such as counseling, speech, occupational and physical therapy.
N.J.A.C: 14-3.9.
• School is responsible to pay for residential placement ONLY IF
child needs the residential program in order to learn, and the
medical, social or emotional problems can not be segregated
from the learning process. Mary Courtney T. v. School District of
Philadelphia, 575 F.3d 235 (E.D. Pa. 2009); Kruelle v. New Castle County School
District, 642 F.2d 687 (3rd Cir. 1981).
• School not responsible for hospital and medical expenses.
The Cadillac vs. Chevrolet
HOW MUCH IS ENOUGH?
The IDEA requires the Board of Education to
provide the educational equivalent of a
"serviceable Chevrolet" to special education
students; it does not require provision of a
"Cadillac.“ DOE v. Board of Education of Tullahoma City Schools, 9
F.3d 455, 459-460 (6th Cir. 1993).
How Do I Know the “Benefit?”
To demonstrate FAPE, the child must show
receipt of “meaningful educational benefit,”
e.g. progress in all areas of “education.”
IDEA Standard Used to
Determine Free Appropriate
Public Education (“FAPE”)
The state has satisfied
its FAPE obligation
when the IEP is
“reasonably calculated
to enable the child to
receive educational
benefits” Board of Educ. V.
Rowley, 458 U.S. 176 (1982).
The Rowley Case, 458 U.S. 176
(1982)
A second grade deaf child was
being taught in a regular
education class, with an FM
hearing aid, a tutor for the deaf
for 1 hr. daily, and speech
therapist 3 hrs./ week. Child
exhibited above average
performance in school and had
been advancing from grade to
grade. Parents claimed that
without a sign language
interpreter in class, child was
not receiving FAPE. Was this IEP
appropriate?
How do I Know?
a) IEP must contain measurable goals and
objectives for the type and amount of
progress. Lascari v. Board of Education of Rampao
Indian Hills, 116 N.J. 301, 560 A.2d 1180 (1989).
b) Schools must evaluate and re-evaluate
student.
c) Independent Evaluations may be available
d) Use of Private Consultants and Observers
What to Watch For
• Lack of academic progress
• Lack of progress in therapies
• Repetitive or inappropriately watered down
curriculum
• Social problems; victim of bullying
• School refusal and phobias
• Safety issues
• Mood changes, Physical changes
• School use of isolation and restraint
What if the IEP is not working?
Parents have many procedural rights:
•Request to Change IEP
•Due Process Hearing before Judge
•Mediation
•The “Stay Put”
•Right to Compensatory Education
•Right to unilaterally place child and seek tuition
reimbursement from school
•Complaint Proceedings
•Civil Rights Actions
General Strategies and Tips
1)
2)
4)
5)
5)
Learn the “PRISE” and follow it.
If it’s not in writing, it didn’t happen.
Give reasonable trial periods, but don’t wait too long.
Statute of Limitation is TWO YEARS.
Make sure the IEP contains measureable goals and objectives,
and monitor progress by the numbers.
6) Obtain evidence on how your child is doing on a periodic and
ongoing basis.
7) If you can afford to do so, assemble a team of private
health/educational professionals for periodic evaluations.
8) Continue to advocate even if you hear that you are being “
hovering and/or overprotective,”, “boys will be boys,” “girls
will be girls”, “wanting too much,” “this phase will pass,”, “your
child is so happy” when you know that is not true, “he/she is
doing fine” when you know this is not true, and “it is not our
responsibility for what happens at home,” when it may be.
9) Be reasonable but persistent.
10) You know your child best; trust yourself.
THANK YOU!
Lisa Krizman
Lisa Krizman Esq., LLC
Cherry Hill, NJ
www.krizmanlaw.com
lisakrizman@krizmanlaw.com
DISCLAIMER
This material is being provided for educational purposes only and should
not be used as a substitute for advice from an attorney in your state.
© Lisa Krizman Esq., LLC 2013