Sussan & Greenwald

ATTORNEYS AT LAW

www.special-ed-law.com

Practice limited to special education and related matters

          New Jersey Administrative Code

The New Jersey Administrative Code, 6A:14-1.1 et seq. has been adopted in this state in order to implement the requirements of IDEA. The Code must be strictly followed by school districts, and a synopsis is given to the parent of every classified child. However parents have a right to ask for a complete copy of Title 6A, and the district is obligated to provide same. The Code largely follows IDEA in scope and sequence. Eligibility under the Code is determined as follows:

After eligibility and classification occur, the IEP Team meets to develop the Individualized Education Program. This document is critical to the child’s program since it will establish the baseline (current levels of educational performance) as well as the measurable goals and objectives for the following year. At least annually, or more often if necessary, the IEP, program and placement are reviewed and revised as needed. Again, the parent is an integral part of this process.

Due to mistakes, inattention, or other agendas, not all children are receiving the type of education that Congress intended when it first enacted the law in 1975. Since most district boards of education and parents will have a lengthy relationship, best practice suggests that both work cooperatively in order to resolve differences. Disputes involve issues dealing with eligibility, classification, program (IEP), placement, and related services. Most differences are resolved by mutual discussion. When an impasse develops, IDEA and NJAC 6A:14-1.1 et seq. describes the procedure for mediation and due process. While mediation is voluntary and informal, it frequently resolves the controversy. When it fails, due process is available. In that instance, the NJ Department of Education transmits the due process request to the Office of Administrative Law for trial. Dates are scheduled, and an Administrative Judge is assigned to handle the case.

Both sides must carefully prepare their case, including presentation of witnesses, both lay and expert. While the district has the burden of proof, the parent must offer evidence to support his or her position. All decisions are final, but may be appealed to either State or Federal Court, where further appeals may be taken to the Court of Appeals for the 3rd Circuit.

An important part of special education is the Individualized Education Program (IEP). This document describes the child's strengths, weaknesses, and starting point of both regular and special education. Since the source federal law, IDEA, is largely procedural in nature, it is important that the school district and parent understand what must be contained in the IEP, and how it should be presented. The sidebar contains a link to a form IEP prepared by the NJ Department of Education with annotations. It is a useful form for parents and educators to review when developing an IEP for a particular youngster. Filling in all of the blanks however is no guarantee that a FAPE will be offered.

The IEP has been called the "road map of special education." An important component of this document is the goals and objectives section. Without carefully crafted goals and objectives, it will be difficult if not impossible to determine whether or not the child has progressed during the preceding year. It is therefore suggested that the parties understand the procedural and substantive requirements that are necessary in order that the IEP be reasonably calculated to offer the child the opportunity for a meaningful education.

When school districts fail to offer a FAPE, some parents place their children in an out of district private school. Under certain circumstances, reimbursement is available, as in the case of Florence v. Carter, U.S. Supreme Court (1993).

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