NEW JERSEY SPECIAL EDUCATION ADVOCACY GUIDE

Table Of Contents

I. LEGAL AUTHORITY FOR SPECIAL EDUCATION

The right to individualized educational programming for students with disabilities is legally guaranteed by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., and its implementing regulations 34 C.F.R. § 300.1, et seq., commonly referred to as IDEA. Under IDEA, every child with a disability that impacts his or her ability to learn is entitled to a “free appropriate public education” (FAPE) in the least restrictive environment This includes special education and related services that make it possible for the child to make meaningful educational progress Children with disabilities are entitled to the opportunity to participate in non-academic classes and activities, and entitled to access to the general curriculum, to the maximum extent appropriate IDEA provides specific timelines and deadlines for parents and school district personnel involved in the provision of a student’s special education, as well as strict procedural rules that must be followed In addition, New Jersey promulgated regulations implementing the special education process and the regulations can be found at N J A C 6A:14 The New Jersey Department of Education maintains a copy on their website at https://www state nj us/education/specialed/reg/

Additionally, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, entitles children with disabilities to educational programs, services, and accommodations and applies to a broader range of students than IDEA. While IDEA is more detailed and contains more comprehensive procedural safeguards than Section 504, students who cannot meet IDEA’s eligibility requirements may be able to obtain services through Section 504.

Privacy and confidentiality, and parental access, amendment, and destruction of educational records are governed by the Family Educational Rights and Privacy Act (FERPA), 34 CFR § 99, et seq

II. THE INITIAL EVALUATION PROCESS

If a parent or guardian believes that his or her child is in need of special education services, a written request to the school district for an evaluation should be sent and is treated as a formal referral Alternatively, school district personnel, such as a child’s teacher, may become aware through classroom observations that a child may have a disability and can make a referral to the child study team Within 20 calendar days of the referral, the full child study team must hold a meeting with the parent and the student’s teacher to determine if an evaluation is warranted and the scope of any evaluation

The child study team must inform the parent in writing of the decision to evaluate at least 15 calendar days before conducting the evaluation If the parent refuses, the school district may request a due process hearing before an administrative law judge to obtain an order to proceed If the parent agrees or the school district receives a court order, the school district has 90 calendar days to complete the evaluations, and if eligible, develop and implement an individualized education program (IEP).

The initial evaluation must consist of assessments by at least two members of the child study team, as well as any other necessary individuals. For some categories of suspected disability, the state mandates specialized assessments. A single test or procedure cannot constitute the entire evaluation, nor can standardized tests be the sole criteria. Additionally, an initial evaluation must include a functional assessment of academic performance and when appropriate a functional behavioral assessment The evaluations must be conducted in the child’s native language unless clearly not feasible to do so and must be nondiscriminatory

The purpose of the evaluation is to determine whether the student has a disability that requires specially designed instruction, the present level of academic and functional achievement and the educational needs of the student If the answer is the student has a disability that requires special education and related services, then the evaluation must also set forth the information necessary to create goals and objectives for the student and determine what services and accommodations are necessary to achieve the goals

You may find the law regarding evaluations at N.J.A.C. 6A:14-3.4.

III. SPECIAL EDUCATION ELIGIBILITY

After the child is evaluated, an eligibility meeting must be held to determine whether special education services are appropriate for the child. The parent, the student (where appropriate), at least one regular education teacher, at least one child study team member who participated in the evaluation, and the case manager must be present at the meeting The parents determine whether it is appropriate for a student to attend the IEP meeting Additional people familiar with the child’s educational progress may attend also, as well as any other individuals the parent or school district wish to attend

If a child has one or more of the disabilities as defined by the state code, the disability adversely affects the child’s educational performance and the child requires specially designed instruction, he or she is eligible for special education and related services In order to be found eligible under IDEA, the student must fit into one of fourteen defined categories found at N J A C 6A:14-3 5

After the eligibility meeting, the district must send the parent written notice of the eligibility determination. This notice must include an explanation of how the parent can dispute the school district’s findings. The parent must consent to the implementation of the initial IEP before the school district may provide services. If a parent refuses to consent, the school district may not provide services to the student and may not take the family to a due process hearing to impose services. The school district may not be held to a violation of a free appropriate public education if the parent refuses to consent to services

The Pre-School eligibility category contains separate requirements To be eligible for preschool services, a student must be between the ages of three and five years of age and exhibit a 33% delay in one area or a 25% delay in two or more of the following areas: physical, cognition,