- be dated,
- explain the nature of the child’s difficulties, and
- explain why the parent believes an evaluation is needed.
Special Education Evaluation
- Who determines if a child needs to be evaluated? When a child is referred to the child study team for an initial evaluation to determine eligibility for special education and related services, a meeting of the child study team, the parent, and the general education teacher of the child must take place within 20 calendar days of the written request or referral. N.J.S.A. § 6A:14-3.3(e). This group must determine whether the evaluation is warranted and, if so, the nature and scope of the evaluation. Id. The parent must be provided with written notice of the group’s determination within 15 days of the meeting. N.J.A.C. § 6A:14-2.3(f), (h).
- What happens after the group determines that the child needs to be evaluated?If the group determines that an evaluation is warranted, the parental notice must describe the types of assessments to be performed and must also request the parent’s consent to conduct these assessments. N.J.A.C. § 6A:14-2.3(a), (g). A child may not be evaluated by the child study team unless the child’s parent gives his or her informed consent in writing, or, if the parent refuses to consent, unless the school district obtains authorization to perform the assessment from an administrative law judge. 20 U.S.C. § 1414(a)(1)(D)(i)(I), (ii)(I); 34 C.F.R. § 300.300(a)(1)(i), (3)(i); N.J.A.C. § 6A:14-1.3, 3.4(c).
- What happens after the parental consent?Once parental consent for an initial evaluation is obtained, the school district must conduct the assessments without delay. N.J.A.C. § 6A:14-2.3(d). The evaluation, determination of eligibility, and, if eligible, development and implementation of the IEP for the child must be completed within 90 days. 34 C.F.R. § 300.301(c)(1)(ii); N.J.A.C. § 6A:14-3.4(e).
- Who conducts the evaluations? Evaluations or assessments are conducted by the school district’s child study team, together with other outside professionals, if needed. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. § 300.301(a); N.J.A.C. § 6A:14-3.4(f). Evaluations must be conducted in such a way as to not discriminate on a racial or cultural basis. 20 U.S.C. § 1414(b)(3)(A)(i); 34 C.F.R. § 300.304(c)(1)(i); N.J.A.C. § 6A:14-2.5(b)(1)(i). Similarly, the assessments must be administered in the language with which the child is most familiar. 20 U.S.C. § 1414(b)(3)(A)(ii); 34 C.F.R. § 300.304(c)(1)(ii); N.J.A.C. § 6A:14-2.5(b)(1)(ii). The assessment must also take into account the child’s condition to assure that it is fair. 20 U.S.C. § 1414(b)(3)(A)(iii); 34 C.F.R. § 300.304(c)(1)(iii); N.J.A.C. § 6A:14-2.5(b)(1)(iii).For example, a child who is blind may not be given a written evaluation.
- How should a child be evaluated? Federal and state law prohibits reliance on any one test, formula, or procedure for determining a child’s eligibility for special education and related services. 34 C.F.R. § 300.304(b)(2); N.J.A.C § 6A:14-2.5(a). Instead, the requisite evaluation must be comprehensive and individualized. 20 U.S.C. § 1414(a)(1)(A); 34 C.F.R. § 300.301(a). The child must be assessed in all areas related to the suspected disability including, if appropriate, health, social and emotional status, general intelligence, academic performance, communication status, and motor abilities. 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); N.J.A.C. § 6A:14-2.5(b)(3).
- Evaluation results: All child study team members and other specialists conducting an assessment of the child must prepare a written report stating the results of the assessment. N.J.A.C. § 6A:14-3.4(h). Parents are entitled to a copy of these report(s), as well as any documentation that will be used in determining the child’s eligibility for special education and related services, at least 10 calendar days before the meeting to determine eligibility is held. N.J.A.C. § 6A:14-3.5(a).
Special education programs in New Jersey are governed by both state and federal law. The main federal law involving the education rights of children with disabilities is known as the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Federal and state regulations to put IDEA into practice also apply to the special education programs. The law says that New Jersey’s public schools are required to provide a “free appropriate public education” for all children with disabilities between the ages of 3 and 21. In addition, parents have the right to participate fully in planning and monitoring the educational services to be provided to their child.
- Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (“FAPE”). FAPE means special education and related services that are:
(i) provided at public expense,
(ii) meet appropriate state standards,
(ii) include preschool, elementary school, or secondary school education, and
(iii) conform with the child’s Individual Education Program (“IEP”). 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
- Special education must be provided in the least restrictive environment (“LRE”). To the extent appropriate, all children with disabilities should be educated with children who are not disabled. 34 C.F.R. § 300.114.
- Special education means specially designed instruction, at no cost to parents, which meets the unique educational needs of a child with a disability. 20 U.S.C. § 1401(29); 34 C.F.R. § 300.39(a).
- Specially designed instruction means “adapting, as appropriate to the needs of an eligible child…the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. § 300.39(b)(3).
- autism;
- cognitive impairment;
- communication impairment
- hearing impairments (including deafness);
- visual impairments (including blindness);
- emotional disturbance;
- orthopedic impairment;
- traumatic brain injury;
- other health impairment, such as chronic illness;
- specific learning disabilities;
- social maladjustment;
- developmental delay (for children ages 3-9).
20 U.S.C. § 1401(3); 34 C.F.R. § 300.8; N.J.A.C. § 6A:14-3.5. Children may be eligible for special education between the ages of 3 to 21 years. N.J.A.C. § 6A:14-1.3, 3.5(a).
Intervention programs: Even if a child does not meet the criteria for a “child with a disability”, he or she still may qualify for educational assistance. School districts are required to provide interventions in the general education program for any child experiencing educational problems. N.J.A.C. § 6A:14:3.3(b). Schools must develop a coordinated system for planning and providing intervention and referral services to children who are experiencing learning, behavioral, or health difficulties. N.J.A.C. § 6A:16-8.1, et seq.
What is an “appropriate” educational program? In order to be “appropriate,” an educational program must provide more than a trivial benefit. Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 182 (3d Cir. 1988). An “appropriate” educational program must confer a “meaningful benefit” that presents an opportunity for “significant learning.” Id. at 182, 184. Whether that standard is met must be gauged in relation to the individual child’s potential. Id. at 185.
- transportation to and from school, or around the school building;
- physical therapy;
- occupational therapy;
- speech/language therapy;
- audiology services;
- interpreting services;
- counseling or psychological services;
- parent counseling and training;
- recreation, including therapeutic recreation services;
- social work services;
- school nurse services;
- medical services (for diagnostic and evaluation purposes only);
- orientation and mobility instruction.
20 U.S.C. § 1401(26); 34 C.F.R. § 300.34(a); N.J.A.C. 6A:14-3.9(a).
Who provides related services? Related services must be provided by appropriately certified and/or licensed professionals as specified in the child’s IEP and in conformance with state standards. N.J.A.C. 6A:14-3.9(a).
- In public schools: The New Jersey Department of Education is ultimately responsible for assuring an appropriate education for children with disabilities who reside in New Jersey. 20 U.S.C. § 1412(a)(11); 34 C.F.R. § 300.149. However, it is the school district in which the child lives that is primarily responsible for actually providing special education and related services. N.J.A.C. § 6A:14-1.1(d).
- In charter schools: For a child attending a charter school, the responsibility for providing a FAPE falls on the charter school, which is considered the equivalent of a public school district. N.J.A.C. § 6A:14-1.3.
- In private schools: The situation is different with regard to children attending private schools. Public school districts are required to locate and evaluate children with disabilities who attend private schools to the same extent as children in public schools. 20 U.S.C. § 1412(a)(10); 34 C.F.R. § 300.131(a); N.J.A.C. § 6A:14-3.3(a)(2), 6.1(c). However, children who are placed by their parents in private schools do not have the same right to receive the special education services they would receive if enrolled in a public school. 34 C.F.R. § 300.137(a), 300.138(a)(2). Instead, the public school district is required to provide services only to some children in private schools based on a mathematical formula related to the federal funding the school district receives for all children with disabilities within the school district, and the proportion of these children who attend private schools. 20 U.S.C. § 1412(a)(10)(A)(i); 34 C.F.R. § 300.132(a); N.J.A.C. § 6A:14-6.1(b). The school district retains significant discretion regarding how and to whom these services will be provided. A pamphlet produced by the United States Department of Education providing additional information for parents of children with disabilities enrolled in private schools is available at http://www2.ed.gov/admins/lead/speced/privateschools/idea.pdf.
Special education must be provided in a least restrictive environment. To the maximum extent appropriate, children with disabilities must be educated among children who are not disabled. Children with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications, supplementary aids, and services are not sufficient in the general education environment. 20 U.S.C. § 1412 (a)(5)(A); 34 C.F.R. § 300.114. Alternative educational placements: In New Jersey, school districts must have a wide range of alternative educational placements available for children with disabilities. N.J.A.C. § 6A:14-4.2(a)(3). The first preference is normal classrooms with supplementary aids and services. However, alternative educational placements also include “pull-out” or “resource” programs for certain academic subjects, “self-contained” classes within the public school, schools for children with disabilities, and, in appropriate circumstances, programs provided at home or in hospitals. 20 U.S.C. § 1401(29); 34 C.F.R. § 300.115. Placement determination: New Jersey law provides that placement of a child with a disability must be determined at least annually. N.J.A.C. § 6A:14-4.2(a)(4). This determination must be based on the child’s IEP, and take into consideration: (1) whether the child can be satisfactorily educated in a mainstream classroom with supplementary aids and services, (2) a comparison of the benefits provided in a mainstream classroom and the benefits provided in a special education class, and (3) the potential beneficial or harmful effects which a particular placement may have on the child with a disability or other children in the class. N.J.A.C. § 6A:14-4.2(a)(5), (8).
A child with a disability may not be removed from the age-appropriate normal classroom solely based on needed modifications to the general education curriculum. N.J.A.C. § 6A:14-4.2(a)(9).
If the parent disagrees with the report’s findings or recommendations, the parent may request an independent education evaluation (“IEE”), which must be considered in determining whether the child qualifies for special education and related services. 34 C.F.R. § 300.502(a)(1), (c)(1); N.J.A.C. § 6A:14-2.5(c), (c)(5). The district must provide an IEE to the parent at no cost unless it chooses to seek a due process hearing to determine whether its own assessment was legally adequate. N.J.A.C. § 6A:14-2.5(c)(2). Eligibility meeting: Ultimately, the determination of whether a child qualifies for special education and related services is made at an eligibility meeting which the child’s parent must attend. The school district must send the parent written notice of the school district’s eligibility determination; the notice must explain the parent’s right to disagree and request mediation hearing or a due process hearing. 20 U.S.C. § 1415(b), (c)(1)(C); 34 C.F.R. § 300.503(a), (b)(4); N.J.A.C. § 6A:14-2.3(f), (g)(6).
- the child’s present level of academic achievement and functional performance;
- measurable annual academic and functional goals that, as appropriate, relate to core curriculum standards;
- short-term, or benchmark, goals designed to ensure that the child is making progress toward his or her annual goals;
- how the child’s progress toward his or her goals will be measured and reported to the child’s parents;
- the specific special education and related services that will be provided, which must be based, if practicable, on scientific research;
- anticipated duration, frequency, and location of services and modifications;
- the placement needed to implement the IEP in the least restrictive environment;
- how children with an out-of-district placement will participate with nondisabled children extracurricular and nonacademic activities;
- the extent, if any, to which the child will not participate with nondisabled children in regular education classes as well as extracurricular and nonacademic activities;
- any modifications required for the administration of statewide or district assessments;
- transition services needed for children 14 years or older, or for children proceeding from an elementary program to a secondary program;
What is the IEP meeting? The IEP meeting must take place within 30 calendar days of the initial determination that the child is eligible for special education and related services. N.J.A.C. § 6A;14-3.7(a).
Individualized Education Program (IEP) Meeting
Before the IEP meeting: The child’s parent must be notified in writing of the purpose, time, and location of the meeting, and of the people who will attend. 34 C.F.R. § 300.501(b); N.J.A.C. § 6A:14-2.3(k)(5).
During the IEP meeting: Except where it is unfeasible, the meeting must be conducted in the language used by the parent including, if necessary, through the use of interpreters provided at no cost to the parent. 34 C.F.R. § 300.322(e); N.J.A.C. § 6A:14-2.4(a).
After the IEP meeting: At the end of the IEP meeting, the parent must be provided with a copy of the IEP or written notes setting forth agreements among the parties as to the IEP. N.J.A.C. § 6A:14-3.7(l). If the parent and other IEP team members are unable to agree on an IEP, the child study team must develop the IEP and must provide a copy of same to the parent within 15 calendar days. N.J.A.C. § 6A:14-2.3(f), 3.7(m).
Implementation of the IEP: Regardless of how an initial IEP is developed, it may not be implemented unless and until the parent provides his or her written consent. 20 U.S.C. § 1414(a)(1)(D)(i)(II); 34 C.F.R. § 300.300(b)(1); N.J.A.C. § 6A:14-2.3(a)(2). In contrast, parental consent is not required to implement any subsequent change to the IEP, so long as the parent is notified in writing of the change and given at least 15 calendar days to consider the proposed change. N.J.A.C. § 6A:14-2.3(h)(2). After the 15 days, the change may go into effect, unless the parent requests a mediation hearing or due process hearing to contest the change. N.J.A.C. § 6A:14-2.3(h)(3)(ii).
Once the IEP is finalized and the parent’s consent is obtained, it must be implemented as soon as possible after the IEP meeting, and no later than 90 days from the parent’s written consent to the initial evaluation. 34 C.F.R. § 300.323(c)(2); N.J.A.C. § 6A:14-3.4(e). In addition, each child who is eligible for special education and related services must have an IEP in place at the beginning of each school year. N.J.A.C. § 6A:14-3.7(a)(1). All of the child’s teachers must be informed of their responsibilities under the IEP. N.J.A.C. § 6A:14-3.7(a)(3).
- If district agrees: For a transfer from one New Jersey school district to another, if the parent and school district agree, the current IEP must be adopted and implemented as written. 34 C.F.R. § 300.323(e)(1); N.J.A.C. § 6A:14-4.1(g)(1).
- If district does not agree:If, however, the school district does not agree with the current IEP, it must perform all required assessments and, within 30 days of the child’s enrollment, develop and implement a new IEP. 34 C.F.R. § 300.323(e)(1); N.J.A.C. § 6A:14-4.1(g)(1).
Transfer from out- of-state district to one in New Jersey: For a transfer from an out-of-state district to one in New Jersey, the receiving school must develop and implement a new IEP for the child within 30 days of his or her enrollment. 34 C.F.R. § 300.323(f); N.J.A.C. § 6A:14-4.1(g)(
If a parent believes the school district has failed to implement a valid IEP or has failed to follow special education law, or is discriminating against a student or a group of students, the parent may file a complaint directly with the New Jersey Department of Education (NJDOE). The NJDOE will investigate the complaint, and will issue a decision regarding non-compliance, including, if appropriate, identifying required corrective actions, within 60 days. 34 C.F.R. § 300.152(a), (b); N.J.A.C. § 6A:14-9.2(c), (e).
- identifying information and should assert sufficiently detailed facts to notify the school district of the nature and legal basis for the dispute,
- the facts supporting the parent’s position, and
a proposed resolution. N.J.A.C. § 6A:14-2.7(c).
What should be included a request for an expedited due process hearing? A request for an expedited due process hearing must include:
- identifying information and should assert sufficiently detailed facts to notify the school district of the nature and legal basis for the dispute,
- the facts supporting the parent’s position,
- a proposed resolution. N.J.A.C. § 6A:14-2.7(c), and
- specify that an expedited hearing is requested due to pending disciplinary action. N.J.A.C. § 6A:14-2.7(o).
What can a parent do if the request is dismissed? If the request fails to meet these standards, the district may file a notice of insufficiency within 15 days of receiving the request. N.J.A.C. § 6A:14-2.7(f). The sufficiency challenge will then be forwarded to an ALJ, who, within 5 days of receiving the challenge, will decide whether the petition sufficiently explains the basis for the parent’s complaint. N.J.A.C. § 6A:14-2.7(f)(1). If it does not, the ALJ may dismiss the case and allow the parent to re-file, or may simply permit the parent to amend his or her request. N.J.A.C. § 6A:14-2.7(f)(2).
Written response to the parent’s request: Within 10 days of receiving the due process request, the school district must provide the parent with a written response explaining the basis for the challenged action or inaction, unless such a response was previously provided to the parent. N.J.A.C. § 6A:14-2.7(e). In any event, the response must include , at minimum, the following information:
- an explanation of why the school district proposed or refused to take the action in question,
- a description of other options that the school district considered and the reasons those options were rejected,
- a description of the evaluation procedure the school district used as the basis for the proposed or refused action, and
- a description of the factors that were relevant to the district’s proposal or refusal. N.J.A.C. § 6A:14-2.7(e)(1) – (4).
Informal resolution meeting: In New Jersey, the parent and district must participate in an informal resolution meeting unless both parties agree to instead participate in mediation, or agree to waive the resolution meeting and proceed straight to the due process hearing. N.J.A.C. § 6A:14-2.7(h), (h)(8), (h)(9).
- Non-expedited hearing:In cases involving a request for a non-expedited due process hearing, the resolution meeting must take place within 15 days of the parent’s petition and must be completed within 30 days. N.J.A.C. § 6A:14-2.7(h)(2), (4).
- Expedited hearing:In cases where the parent requests an expedited due process hearing (i.e., in cases over disciplinary action), the resolution meeting must take placewithin 7 days of the petition and must be completed within 15 days. N.J.A.C. § 6A:14-2.7(o)(2)(iii).
If no resolution is reached by these deadlines, or if the parties waive the resolution meeting, or if the parties state in writing that no resolution is possible, then the matter is recommended to an ALJ for a due process hearing or expedited due process hearing. N.J.A.C. § 6A:14-2.7(h)(4), (h)(5), (h)(9)(iii), (h)(10), (j)(1).
The resolution meeting must include the parent and a school district official with authority to make decisions on behalf of the district, as well as relevant members of the child’s IEP team. N.J.A.C. § 6A:14-2.7(h), (h)(1). The school district may not have an attorney present, unless the parent also has an attorney present. N.J.A.C. § 6A:14-2.7(h)(1)(i). If the parties reach an agreement at the resolution meeting, the agreement must be put in writing. Both parties have 3 days to revoke their agreement, which becomes binding and enforceable in court if not revoked. 20 U.S.C. § 1415(f)(1)(B)(iii)(II); 34 C.F.R. § 300.510(d)(2); N.J.A.C. § 6A:14-2.7(h)(6).
Mediation: Parents who waive the resolution session may still participate in mediation. A parent may file for mediation only, or may seek mediation as part of his or her request for a due process hearing. N.J.A.C. § 6A:14-2.6; N.J.A.C. § 6A:14-2.7(h)(8). Mediation is a voluntary and confidential process in which a trained, impartial facilitator works with both parties to reach an agreement. In contrast to an agreement reached at a resolution meeting, there is no three-day window during which one may void an agreement reached at mediation.
- If done as part of a due process hearing request, mediation must be completed within 30 days of the date on which the due process petition was filed (within 15 days for an expedited hearing request). N.J.A.C. § 6A:14-2.7(h)(4), (h)(5), (h)(8)(iii), (o)(2)(iii).
- If no resolution is reached by that point, or if the parties state in writing that no agreement is possible, the matter is then referred to the administrative law judgefor a due process hearing or expedited due process hearing. N.J.A.C. § 6A:14-2.7(h)(4), (h)(5), (h)(8)(iii), (o)(2)(iii).
A parent has many rights related to the due process hearing. Among other things, the parent has the right to:
- an unbiased administrative law judge to conduct the hearing and make the decision;
- have the hearing at a time and place that is reasonably convenient;
- have a full record of the hearing;
- have disclosed at least 5 days in advance (2 days for expedited hearings) any documentary evidence and summaries of testimony the school district intends to use at the hearing, and to seek an order barring any evidence not so disclosed;
- have an attorney present;
- introduce documents into evidence, call witnesses, challenge the school district’s evidence, and cross-exam the school district’s witnesses;
- compel the hearing attendance of any knowledgeable school district official or other employee.
34 C.F.R. § 300.511(c)(1)(i), 300.515(d), 300.512(a), 300.512(b); N.J.A.C. § 1:6A-10.1(a) – (c).
What happened when the due process hearing is recommended to Administrative Law Judge (ALJ)? Once a request for a due process hearing is recommended to the ALJ, it generally must be negotiated within 45 calendar days of the expiration of the period within which to complete the resolution meeting (generally, 30 days), unless a specific negotiation is requested and granted. N.J.A.C. § 6A:14-2.7(j). For expedited hearings, this timeline is accelerated such that the hearing must be conducted within 20 days of the date of the petition and a final, written decision must be issued within 10 school days of the hearing. N.J.A.C. § 6A:14-2.7(o)(2)(ii), (o)(4).
What happens when Administrative Law Judge (ALJ) makes a decision? Regardless of the timeline, the ALJ must issue a written decision with the reasons of the decision.. 20 U.S.C. § 1415(h)(4); 34 C.F.R. § 300.512(a)(5). The ALJ’s decision is binding on both parties, and must be implemented “without undue delay,” unless a stay pending appeal is granted. N.J.A.C. § 6A:14-2.7(l).
Can the decision be appealed? Either side may appeal the ALJ’s decision by filing a civil complaint in New Jersey state or federal court within 90 days of the decision. N.J.A.C. § 6A:14-2.7(v)
Where does the child go during the due process or mediation hearing? Once a due process request (or request for mediation) has been filed, the child is entitled to “stay put.” This means that the placement and services of the child’s last agreed upon IEP remain in effect until the dispute has been resolved. N.J.A.C. § 6A:14-2.6(d)(10), 2.7(u). The parent and school district may agree to a change in placement or services, or the parties may request that an ALJ make an immediate ruling on the proposed change, pending the outcome of the mediation or due process hearing. N.J.A.C. § 6A:14-2.6(d)(10), 2.7(u).
For more information on New Jersey’s due process procedures, visit the state’s website at http://www.nj.gov/education/specialed/due/
In general, school districts must attempt to address the behavioral problems of children with disabilities through positive intervention. Indeed, whenever the behavior of a child with a disability interferes with the learning of the child or others, the child’s IEP team must consider for inclusion in the child’s IEP “positive behavior interventions and supports” and “other strategies” to address that behavior. N.J.A.C. § 6A:14-3.7(c)(4). If warranted, the IEP team may be required to reevaluate the child to conduct a “functional behavioral assessment.” N.J.A.C. § 6A:14-3.4(f)(4). This assessment is designed to help the IEP team understand the causes of the child’s behavioral issues, with an eye toward developing a “behavioral intervention plan” that teaches the child positive strategies to improve his or her behavior. Can a child be suspended? Notwithstanding the preference for positive behavioral intervention, school districts have discretion to discipline children with disabilities under certain circumstances. Unless otherwise specified in the child’s IEP, school officials may suspend a child with a disability for up to 10 consecutive school days (a short-term suspension), just as they would a nondisabled child under the general standards and procedures applicable to short-term suspensions, so long as the suspension does not constitute a “change in placement” (discussed below). 20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b), (e); N.J.A.C. § 6A:16-7.1(a)(7). The child must be informed of the basis for the short-term suspension, and given an opportunity to present his or her version of events during an informal hearing. N.J.A.C. § 6A:16-7.2(a)(1), (2). Even if the child is under short-term suspension, he or she must nonetheless be provided with educational services that are consistent with his or her IEP, within 5 school days of any suspension. N.J.A.C. § 6A:16-7.2(a)(5). For how long can a student be suspended? A school district may not deprive a child with a disability of educational services for more than a total of 10 school days in a given year. 34 C.F.R. § 300.530(b)(2), (c), (d) (g). Thus, if a school subjects a child with a disability to a short-term suspension that results in the suspension of the child for more than 10 days in a given year, but is not a “change in placement,” then the district must provide the child with educational services to the extent needed for the child to receive a free appropriate public education, though such services may be provided in another setting. 34 C.F.R. § 300.530(b)(2), (d)(4). What is a “change in placement”? The rules are different for a discipline that constitutes a “change in placement.” A change in placement occurs in one of 2 circumstances: (1) the child is removed from school for disciplinary reasons for more than 10 consecutive days (i.e., a long-term suspension), or (2) the child is subject to a series of short-term suspensions that constitute a “pattern” because (a) the series of suspensions total more than 10 days in a school year, (b) the child’s behavior is substantially similar to behavior in previous incidents that resulted in the series of suspensions, and (c) additional relevant factors are present such as the length of each suspension, total time suspended, or proximity of the suspensions to one another. 34 C.F.R. § 300.536(a). Are the procedures different for short-term and long-term suspension? The procedures applicable to discipline constituting a change in placement are similar, regardless of whether the change in placement arises from a long-term suspension or a pattern of short-term suspensions. Under either, the discipline is permissible under the same standards and procedures applicable to nondisabled students, so long as (1) the child’s IEP does not provide otherwise and (2) the child’s conduct is determined not to be a “manifestation” of the child’s disability. 20 U.S.C. § 1415(k); 34 C.F.R. § 300.530; N.J.A.C. § 6A:16-7.1(a)(7). The child’s conduct is said to be a manifestation of his or her disability if: (1) it was “caused by, or had a direct and substantial relationship to” the child’s disability or (2) it was “the direct result of the [school district’s] failure to implement the IEP.” 20 U.S.C. § 1415(k)(1)(E)(i). Manifestation determination meeting: A manifestation determination meeting must be convened within 10 school days of any decision to impose discipline amounting to a change in placement. 20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1); N.J.A.C. § 6A:14-2.8(d), 16-7.3(a)(7). The meeting must be attended by the child’s parent, a school district representative, and relevant members of the IEP team. 20 U.S.C. § 1415(k)(1)(E)(i); 34 C.F.R. § 300.530(e)(1). If the team determines that the child’s behavior was a manifestation of his or her disability, then the child must be returned to his or her original educational placement, unless the parent and school agree otherwise, or unless the child is involved with drugs, weapons or presents a danger to himself or others (in which case the school may place the child in an interim alternative educational setting for up to 45 days). 20 U.S.C. § 1415(k)(1)(F)(iii), (G); 34 C.F.R. § 300.530(f)(2). The school must also perform a functional behavioral assessment for the child or modify his or her existing behavior plan to address the behavior. 20 U.S.C. § 1415(k)(1)(F); 34 C.F.R. § 300.530(f)(1). If the team concludes that the behavior was NOT a manifestation of the child’s disability, then the discipline amounting to a change in placement may proceed, provided that: (1) the child is afforded the same protections applicable to all children and (2) within 5 days of the suspension, the child is given, in an interim alternative educational setting, educational services amounting to a free appropriate public education that is consistent with the child’s IEP. 20 U.S.C. § 1415(k)(D)(i); 34 C.F.R. § 300.530(b), (c), (d)(1)(i); N.J.A.C. § 6A:16-7.2(a)(5)(i), 7.3(a)(9)(i). How can a parent appeal the manifestation determination? A parent may appeal the manifestation determination by requesting a due process hearing. The appeal should be resolved within 30 days, and in the meantime, the child remains in the interim educational setting. 20 U.S.C. § 1415(k)(3),(4); 34 C.F.R. § 300.532, 300.533. Schools cannot expel students with disabilities for more than 10 days. Parents should be aware that school districts sometimes attempt to avoid the rules governing the discipline of children with disabilities by threatening to “expel” a child if his or her parent does not consent to a change of placement to home instruction. Such threats are false. Federal law prohibits a school district from discontinuing educational services to a child with a disability for more than 10 school days in a given school year. 34 C.F.R. § 300.530(b)(2), (c), (d) (g). Whenever a child with a disability is suspended from school for more than 5 consecutive school days, the child must be given educational services that afford the child a free appropriate public education and are consistent with the child’s IEP. N.J.A.C. § 6A:16-7.2(a)(5), 7.3(a)(9). As a result, a parent should never be led to believe that the school district has the authority to completely discontinue providing educational services to the child.
Yes. A parent has the right to inspect, review, and get a copy of all of a child’s school records. N.J.A.C. § 6A:32-2.1, 7.1(f). The school district is permitted to charge a reasonable fee for making photocopies of the records, unless the parent is unable to pay the fee or the fee would effectively prevent the parent from accessing the records. N.J.A.C. § 6A:32-7.5(c). The school district must provide access to the records without “unnecessary delay” and, in any event, no later than 10 days from the date of the parent’s request to see them. 34 C.F.R. § 300.613(a); N.J.A.C. § 6A:14-2.9(b), 32-7.1(g). The parent must be given access to the records before any scheduled IEP meeting, resolution session, or due process hearing. 20 U.S.C. § 1415(b)(1); 34 C.F.R. § 300.501(a), 300.613(a); N.J.A.C. § 6A:14-2.9(b). The only kind of information that a school district may keep on a child is that which pertains to the child’s education. N.J.A.C. § 6A:32-7.1(c), 7.3(a).
