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SUSSAN & GREENWALD NEWSLETTER 11-13-00
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1. Obligations of Public Agencies in Serving Children with Disabilities Placed by Their Parents at Private Schools.The Federal Office of Special Education Programs (OSERS) has just issued a document in response to requests for it's position on the nature and extent of school districts’ obligations to parentally-placed private school children with disabilities under Part B of the Individuals with Disabilities Education Act (Part B). In a question and answer format, OSERS consolidates current statutory and administrative regulations. One question asked and answered is "Are public agencies required to conduct periodic reevaluations of parentally-placed private school children with disabilities, and if so, of which parentally-placed private school children?" The answer is yes. For the full document see: http://www.nichcy.org/private.htm It can also be accessed on Sussan & Greenwald via the left hand drop down menu under "PRIVATE PLACEMENT-OSERS POLICY". 2. NJ Department of Education Publishes list of Approved in-state Schools to the Web.After what seemed quite a long time, the Department has finally put up on its web site the list of in-state approved schools. http://www.state.nj.us/njded/specialed/instate/index.html This list does change from time to time- facilities can be removed or added. Keep in mind that despite a school not being approved, there are other laws that might allow for reimbursement. See generally NJAC 6A:14-6.5, Placement in accredited nonpublic schools which are not specifically approved for the education of dis! ! abled students. 3.Theodore Sussan and Staci Greenwald have recently been appointed to the Children's Apraxia Network's Executive Board. http://www.shopinservice.com/new_page_1.htm Apraxia is a neurologically based, severe speech disorder. Children diagnosed with apraxia need daily, intensive, appropriate therapy. For further information click on http://www.shopinservice.com/latetalker.htm 4.NJ Court Rules in favor of Residential Placement due to Emotional Disturbance.A recent due process case was finally decided in favor of the parents despite vigorous opposition from the board of education. The 17 year old student in question had been diagnosed with a multitude of disabling conditions including an obsessive-compulsive disorder, major depression, bi-polar disorder, an aggressive personality disorder, attention deficit disorder, and an identity disorder of adolescence. The parents had argued that residential placement was the only placement that could offer a free appropriate public education. The board's position was that if residential placement was necessary, it was for medical reasons that were segregable from the learning process, and therefore not a school responsibility. It also argued that residential placement would not be the least restrictive placement. In ruling in favor of the parents, the court noted that "in reference to the mandate that the child be educated in the least restrictive environment possible, if day school cannot provide an appropriate education it is, by definition, not a possible alternative." For the complete opinion see http://lawlibrary.rutgers.edu/oal/html/initial/eds11416-99_1.html 5.Important 3rd Circuit Court of Appeals cases interprets parents entitlement to fee reimbursement.In this case the parents were disputing the adequacy of their son's iep for a long period of time. Although the district made some concessions, the parents felt the iep was still inappropriate. Finally they retained an attorney, who filed for due process. Well before the start of the trial, the attorney contacted the board attorney and suggested that all the parties meet in an attempt to settle the dispute, and avoid litigation costs. The meeting occurred, and all issues were resolved. The iep was reformed in accordance with the parents requests. Thereafter the parents attorney brought an action in federal court seeking reimbursement of attorney fees. The board of education defended on the grounds that the meeting was essentially an iep meeting and by the provisions of the 1977 IDEA amendments, attorney fees were not reimbursable since the iep meeting was not as a result of an administrative proceeding- the hearing had not yet begun. The court ruled in favor of the parents, holding that the iep meeting and settlement was as a result of the filing of the due process petition, which was an administrative proceeding. A spirited dissenting opinion viewed the iep meeting as actually being a settlement conference and therefore not falling under the prohibition of fee recovery for attorneys attending iep meetings. Read the full text of the opinion: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=003050 6. Dictionary for Special Education- Parents must understand the terms used by the iep Team.Dictionary: For Parents of Children with Disabilities includes terminology used within the fields of: Testing/Evaluation, Early Intervention, Special Education and Related Services, Medical and Therapeutic Services, Family Supports and Resources, Vocational Training, Independent Living, Guardianship, and Insurance. http://www.usd.edu/sduap/Dictionary/Dictionary.htmSussan & Greenwald, Esqs 620 Cranbury Road, Suite 212, East Brunswick, NJ 732-238-0900 http://www.special-ed-law.com
SUSSAN & GREENWALD NEWSLETTER 4-8-01
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1. New Jersey Court invalidates sections of the New Jersey Administrative Code. The Appellate Division of the NJ Superior Court has ruled that 8 sections of the New Jersey Administrative Code were in violation of either the letter or spirit of the Individuals with Disability Education Act. In the case of NEW JERSEY PROTECTION & ADVOCACY, et. al., v. STATE BOARD OF EDUCATION, st. al., decided April 4, 2001, the Court first ruled that ruled that N.J.A.C. 6A:14-3.5(a) must be amended or replaced to ensure that copies of evaluation reports, tests, materials, and other documentation of the eligibility are provided to parents within a reasonable time prior to the eligibility conference to facilitate the meaningful participation of parents and others they consult in the determination of eligibility. For years, Child Study Teams refused to give parents copies of reports until the IEP meeting was in progress. This often times prevented parents from participating in IEP development in any meaningful way. For this and other sections that were declared invalid, see http://www.special-ed-law.com/Cases/NJPAvNJBOE.htm
2. NJ Department of Education Publishes list of Approved in-state Schools to the Web.After what seemed quite a long time, the Department has finally put up on its web site the list of in-state approved schools. http://www.state.nj.us/njded/specialed/instate/index.html This list does change from time to time- facilities can be removed or added. Keep in mind that despite a school not being approved, there are other laws that might allow for reimbursement. See generally NJAC 6A:14-6.5, Placement in accredited nonpublic schools which are not specifically approved for the education of disabled students. 3.Theodore Sussan and Staci Greenwald have recently been appointed to the Children's Apraxia Network's Executive Board. http://www.shopinservice.com/new_page_1.htm Apraxia is a neurologically based, severe speech disorder. Children diagnosed with apraxia need daily, intensive, appropriate therapy. For further information click on http://www.shopinservice.com/latetalker.htm 4.NJ Court Rules in favor of Residential Placement due to Emotional Disturbance.A recent due process case was finally decided in favor of the parents despite vigorous opposition from the board of education. The 17 year old student in question had been diagnosed with a multitude of disabling conditions including an obsessive-compulsive disorder, major depression, bi-polar disorder, an aggressive personality disorder, attention deficit disorder, and an identity disorder of adolescence. The parents had argued that residential placement was the only placement that could offer a free appropriate public education. The board's position was that if residential placement was necessary, it was for medical reasons that were segregable from the learning process, and therefore not a school responsibility. It also argued that residential placement would not be the least restrictive placement. In ruling in favor of the parents, the court noted that "in reference to the mandate that the child be educated in the least restrictive environment possible, if day school cannot provide an appropriate education it is, by definition, not a possible alternative." For the complete opinion see http://lawlibrary.rutgers.edu/oal/html/initial/eds11416-99_1.html 5.Important 3rd Circuit Court of Appeals cases interprets parents entitlement to fee reimbursement.In this case the parents were disputing the adequacy of their son's iep for a long period of time. Although the district made some concessions, the parents felt the iep was still inappropriate. Finally they retained an attorney, who filed for due process. Well before the start of the trial, the attorney contacted the board attorney and suggested that all the parties meet in an attempt to settle the dispute, and avoid litigation costs. The meeting occurred, and all issues were resolved. The iep was reformed in accordance with the parents requests. Thereafter the parents attorney brought an action in federal court seeking reimbursement of attorney fees. The board of education defended on the grounds that the meeting was essentially an iep meeting and by the provisions of the 1977 IDEA amendments, attorney fees were not reimbursable since the iep meeting was not as a result of an administrative proceeding- the hearing had not yet begun. The court ruled in favor of the parents, holding that the iep meeting and settlement was as a result of the filing of the due process petition, which was an administrative proceeding. A spirited dissenting opinion viewed the iep meeting as actually being a settlement conference and therefore not falling under the prohibition of fee recovery for attorneys attending iep meetings. Read the full text of the opinion: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=3rd&navby=case&no=003050 6. Dictionary for Special Education- Parents must understand the terms used by the iep Team.Dictionary: For Parents of Children with Disabilities includes terminology used within the fields of: Testing/Evaluation, Early Intervention, Special Education and Related Services, Medical and Therapeutic Services, Family Supports and Resources, Vocational Training, Independent Living, Guardianship, and Insurance. http://www.usd.edu/sduap/Dictionary/Dictionary.htm Sussan & Greenwald, Esqs 620 Cranbury Road, East Brunswick New Jersey 08816 732-238-0900 http://www.special-ed-law.com ted@special-ed-law.com
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