tools for meeting life’s challenges new jersey special education law lisa krizman lisa krizman...
TRANSCRIPT
Tools for Meeting Life’s Challenges
New Jersey Special Education Law
Lisa KrizmanLisa Krizman Esq., LLC
Cherry Hill, NJNovember 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”)The state board of education must provide children with disabilities with a Free Appropriate Public Education (“FAPE”):
•At public expense;•Under public direction;•According to the standards of the state educational agency;•Provided in conformity with an individualized education program (the IEP).
Individualized Education Program (“IEP”)• 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 “Child Study Team” in New Jersey.
• It is the primary mechanism for delivering the FAPE to the child.
• Present levels, goals and objectives. N.J.A.C. 6A; 14-3.7; 20 USC 1414(d)(1) (B); Susan N. v. Wilson Sch. Dist. 70 F. 3d 751, 756 (3d Cir. 1995).
Current IDEA Standardfor 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 for special education and related services if the student has one or more disabilities defined below, AND the disability adversely affects the student’s educational performance AND the student is in need of special education and related services.
N.J.A.C 6A; 14-3.5 (c )
The 14 classifications of disabilities:
• Auditorily impaired• Visually Impaired• Cognitively impaired• Communication impaired,• Emotionally disturbed• Orthopedically impaired• Other Health Impaired (chronic illness)• Austistic• Specific learning disability• Traumatic brain injury• 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 availabled) 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 Tips1) Learn the “PRISE” and follow it.2) If it’s not in writing, it didn’t happen.4) Give reasonable trial periods, but don’t wait too long. 5) Statute of Limitation is TWO YEARS.5) 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., LLCCherry Hill, NJ
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