STAYING AHEAD IN SPECIAL EDUCATION

By: Lester E. Taylor, Esq. and Robert Donchez, Esq.

Accommodating the needs of physically and emotionally disabled students demands strict compliance with both the Federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, and applicable New Jersey statutes and regulations. Therefore, when accommodating students with special needs, school districts must ensure that their conduct meets established procedural and substantive standards.

The State of New Jersey has adopted the definition of “special education” set forth in the IDEA, 20 U.S.C. § 1401(29), which reads:

The term ‘special education’ means specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including –
	(A) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
	(B) Instruction in physical education.

Providing “special” education therefore includes “adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction” 34 CFR § 300.39(b)(3). It is important to note, however, that the need to modify the general curriculum for a student does not necessarily warrant the student’s removal from general education classes. N.J.A.C. 6A:14-4.2. A school district must work to educate special education students in the “least restrictive environment” (“LRE”) possible. Id. Specifically, schools are required to create an “individualized education program” (“IEP”) for each student. 20 U.S.C. § 1414(d)(2)(A). The IEP is to be developed by a Child Study Team composed of a group of individuals including, but not limited to, the child’s parents, a regular education teacher, a special education teacher and a person with special knowledge related to the child’s education. 20 U.S.C. § 1414(d)(1)(B). The Child Study Team must also coordinate their efforts with the Executive County Superintendent whose role is to promote and facilitate the sharing of special education services. N.J.A.C. 6A:23A-2.7. Specifically, when Child Study Teams are considering placement of a student in an out-of-district program, they must contact the Executive County Superintendent to help identify program options for the student. Id.

In the course of providing for the needs of physical and mentally disabled students, school districts must be cognizant of the potential for parental disputes regarding the development and implementation of a special education program for its students. The applicable rules governing special education contain specific procedural safeguards, including notice requirements, which must be carefully followed. Parents of students in special education programs have a right to request a Due Process Hearing when a disagreement exists “regarding identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action.” N.J.A.C. 6A:14-2.7. Although a district then has fifteen (15) days from the time a parent notifies the State Director of the Office of Special Education of a request for a Due Process Hearing [or seven (7) days for an expedited hearing] to resolve the matter through a “resolution session,” matters will be referred to the Office of Administrative Law where no resolution has been achieved within thirty (30) days (or 15 days for expedited hearings) and participation in mediation does not occur. See N.J.A.C. 6A:14-2.7(h)(4) & (5). As an alternative, parents may also elect to participate in mediation in lieu of a resolution meeting. Notably, in all Due Process Hearings, the burden of both production and persuasion lies squarely on the school district to prove no wrongdoing with respect to the educational placement of, or services provided to, the student.

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Private Placement

A common issue of dispute in special education cases revolves around the placement of students with disabilities in private schools. Pursuant to N.J.A.C. 6A:14-2.10(a), “the district board of education shall not be required to pay for the cost of education, including special education and related services, of a student with a disability if the district made available a free, appropriate public education and the parents elected to enroll the student in a nonpublic school, an early childhood program, or an approved private school for students with disabilities.” However, where a student with a disability is enrolled in a nonpublic school without the consent of the district after previously receiving special education services from the district, reimbursement for the costs of enrollment may be ordered where “the administrative law judge finds that the district had not made a free, appropriate public education available to that student in a timely manner prior to that enrollment and that the private placement is appropriate.” N.J.A.C. 6A:14-2.10(b).

Recent case law further expands on the issue of reimbursement obligations for privately placed students. In D.L. and K.L. o/b/o J.L. v. Springfield Board of Education, No. 05-5129, 2008 U.S. Dist. LEXIS 17727 (D.N.J. March 6, 2008), the court ruled that a student is not barred from seeking tuition reimbursement from a school board where the student did not first “try out” an IEP from the school which they found inadequate. In so holding, the court noted that it would be unreasonable “to require parents to jeopardize their child’s health and education . . . in order to qualify for the right to seek tuition reimbursement.” Id. (citing, Frank G. v. Board of Education of Hyde Park, Central School District, 459 F.3d 356, 372 (2d. Cir. 2006)). Similarly, in J.S. and J.S. o/b/o R.S. v. South Orange Board of Education, No. 06-3494, 2008, U.S. Dist. LEXIS 24031 (D.N.J. March 26, 2008), the Court held that the IDEA did not require that the student initially receive special education services from the district in order to receive reimbursement where unilateral placement occurred. In that case, the court specifically noted that the district had failed to reach a conclusion on the child’s status for a period of one year and this failure denied the child a “free appropriate public education,” as required by the IDEA. Id. Therefore, as these cases demonstrate, school districts must take seriously their obligation for reimbursement in the event an adequate IEP is not provided.

Accordingly, proper evaluation and response to potential disputes is imperative. Knowing the rights and obligations of school districts is critical in formulating a good defense and ensuring that eligible students receive appropriate special education services. School districts are not without rights under the IDEA. For example, where a parent files a complaint “that is frivolous, unreasonable, or without foundation” or when an attorney for the parents continues to litigate after the litigation clearly became “frivolous, unreasonable, or without foundation,” a school district may be entitled to receive attorneys’ fees under the IDEA. See 20 U.S.C. § 1415.

Ultimately, ensuring strict and continuing compliance with federal and state laws and regulations governing special education can decrease the potential for costly special education related costs, inclusive of out of district placements and litigation, in the future.

At Florio Perrucci Steinhardt and Fader, LLC, our attorneys have extensive education law experience. Our firm is committed to working with our clients to ensure full compliance with the law with the aim of preventing disputes while at the same time aggressively representing school districts in pending matters. Our lawyers regularly attend seminars on the latest developments in the education law field and we offer our Board of Education clients (Board Members and/or staff) workshops and training on various issues, inclusive of Board Member governance, roles and responsibilities of Board Members and District Staff, Open Public Meetings Act compliance and other areas of interest and concern to Board Members and the School Districts they represent. To seek more information regarding education law, or the various other legal services we offer, please contact our firm where we will work hard to assist you with addressing all of your legal needs.

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