Special Education Team
The COVID-19 pandemic has certainly thrusted the special education world into unchartered territory. There have been many developments in the past few weeks and there will be more. The US Department of Education (USDOE), caught off guard by this pandemic, sent out guidance memo on March 20, 2020, stating that if school districts are not providing any educational services to the general student population, then they don’t have to provide a free, appropriate public education (FAPE) to students with disabilities under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504). Conversely, if the districts are providing educational services to all the students, then it must provide FAPE, too.
Because the USDOE’s guidance memo actually caused more problems and confusion than solutions, it issued another guidance memo the next day clarifying that the special education laws (IDEA and Section 504) don’t prohibit online/virtual instruction. Districts have a lot of discretion to decide how the services are to be provided that takes into account the health and safety of the students and district personnel.
The State of New Jersey responded by voting to approve emergency changes to the New Jersey special education code to allow for instruction in the “virtual world” – telephone, videoconferencing software, etc.
Disability Rights New Jersey has been an active participant in the New Jersey Special Education Practitioners Group – a group of parent-side attorneys and organizations like the Educational Law Center – in advocating for students with disabilities during this pandemic. We have sent letters to the NJ Department of Education and the United States Department of Education.
The big concern is that as part of the recent economic stimulus bill ($2.2T to the American public) that Congress just passed, the USDOE’s Secretary Betsy DeVos has up to 30 days from the passage of the stimulus bill to make recommendations to Congress pertaining to special education. The biggest fear of the disability rights advocates is that DeVos will recommend that certain provisions of the IDEA and Section 504 be waived during this pandemic. The New Jersey Special Education Practitioners Group just sent a letter to DeVos urging her to protect the civil rights of students.
April 13
On April 9, 2021, the New Jersey Supreme Court’s Committee on the Unauthorized Practice of Law (Committee) issued a new ethics opinion, known as Opinion 57, that addresses the issue of whether non-lawyer advocates can represent or speak on behalf of special education students in IEP meetings and mediation conferences. The Committee determined that non-lawyer advocates are practicing law when they are advising, representing, or speaking on behalf of students at IEP meetings and mediation conferences.
However, the Committee recognized that special education is complicated to understand and that there is a lack of lawyers with special education knowledge available to help parents who need them. It is for this primary reason why the Committee determined non-lawyer advocates with special knowledge or training of special education laws and procedures can represent students in IEP meetings and mediation. The Committee made it clear that non-lawyer advocates must have explicit permission from the parent to appear at the IEP meeting without the parent. The explicit permission requirement does not apply to court-appointed special advocate (CASA) volunteers.
The Committee also made it clear that non-lawyer advocates must have the parent accompany them during mediation. However, these advocates do not require explicit permission from the parent to communicate with the school district in less formal settings.
March 8
The New Jersey Department of Education released a memorandum dated March 3, 2021, regarding compensatory education for students with disabilities who did not receive a free, appropriate public education because of the COVID-19 pandemic. Please contact us if you have any questions or concerns about this guidance memo.
December 1
Bulletin: Students with Life-Threatening Medical Conditions
There is a growing number of students enrolled in New Jersey schools with medical conditions that are potentially life-threatening such as epilepsy, diabetes, and nut allergies. This bulletin serves as general guidance for parents to ensure the safety of those students at school and during school functions. 1
What Are Schools Obligated To Do?
Public and non-public schools are required to have policies that foster a safe and healthy learning environment for students.2 The policies include guidelines for managing students’ medical conditions like monitoring the student’s glucose level and the emergent administration of epinephrine for a student with a nut allergy. The policies can be obtained from the school’s website or front office.
November 5
New Jersey Supreme Court Seeks Comments On Role Of Non-Lawyers In Special Education
If you are a parent of a child who receives special education services, your ability to fight for your child might be in danger because of a recent opinion from the New Jersey Supreme Court’s Committee on the Unauthorized Practice of Law (Committee). However, you can stop the opinion from taking away your ability to fight for your child by writing to the Committee by November 16, 2020.
The Committee released Opinion 56 on September 30, 2020, that makes it more difficult for advocates who are not lawyers to help special education students in Individualized Educational Program (IEP) meetings and mediation conferences. Opinion 56 states it would be unethical for non-lawyer advocates to “represent” students or “speak on their behalf” in IEP meetings and mediation conferences.
Opinion 56 would harm students with disabilities because there are not many free and low-cost legal services available to help their parents navigate the special education process that is difficult for anyone to learn. Over the years, non-attorney advocates have helped parents - many of whom do not have strong educational backgrounds or even speak English - in IEP meetings and mediation conferences that can be frightening. The fear of violating Opinion 56’s unclear language would discourage the use of non-attorney advocates, thus giving school districts another advantage over parents.
As a result of protests, the Committee suspended Opinion 56 to allow for the public to make comments on its impact until November 16, 2020. If you want to submit your comments based on your own experiences as parent and/or advocate of a student with disabilities, you may mail them to:
Committee on the Unauthorized Practice of Law
Attention: Carol Johnston, Committee Secretary
Richard J. Hughes Justice Complex
P.O. Box 970
Trenton, New Jersey 08625-0970
If you prefer, you may e-mail your comments to Comments.Mailbox@njcourts.gov instead. Please understand that no comments may be submitted anonymously.
Should you have any questions or concerns, please do to hesitate to reach out to advocate@drnj.org.
July 10
Disability Rights NJ hosted the second of two Special Education Lunch & Learn Webinars with a focus on the impact of the COVID-19 pandemic on our students' needs.
Presented by Senior Staff Attorney, Robert Robinson and Regina A. Smith, Legal Extern/Certified Special Education Teacher - they provided important information for parents of children with special education needs.
This session covered:
Basics of Extended School Year and compensatory services
COVID-19's impact on both
Suggested strategies to deal with one or both
July 7
Disability Rights NJ hosted the first of two Special Education Lunch & Learn Webinars with a focus on the impact of the COVID-19 pandemic on our students' needs.
Presented by Senior Staff Attorney, Robert Robinson and Regina A. Smith, Legal Extern/Certified Special Education Teacher - they provided important information for parents of children with special education needs.
This session covered:
Basics of transition services and graduation requirements
COVID-19's impact on both
Suggested strategies to deal with one or both
May 5
The American Academy of Pediatrics has provided guidance on returning to school with particular direction for students with disabilities.
May 4
Disability Rights New Jersey has been fighting against an unfair policy adopted by some school districts to withhold special education and related services over the internet, unless parents agree to sign waivers of their children’s rights. We contend that this policy violates state and federal law. You can read more about this and the actions we’ve taken to stop this injustice against students with special needs in the email link below.
Disability Rights New Jersey advises our clients who signed a waiver to email their school district to rescind the waiver.
Disability Rights New Jersey Continues to Fight For Students with Disabilities
Some school districts in New Jersey are withholding Special Education Services for students now that learning has been moved to virtual classrooms. In an email shared May 4, 2020, Disability Rights NJ shared the actions taken against the the injustice, with petitions filed for Due Process and Emergent Relief against one school district refusing to provide a student his IEP services since COVID-19 forced schools to close.
April 30
The New Jersey Department of Education (NJDOE) has become aware of instances in which school districts are requiring parents or guardians to waive certain legal rights or give written consent for services as a condition for receipt of special education or related services. The purpose of this memo is to clarify that these practices violate the Individuals with Disabilities Education Act (IDEA) and NJDOE regulations.
April 28
Disability Rights New Jersey Referenced in NPR Update on Special Education Law Under Review by DeVos
U.S. Education Secretary Betsy DeVos will not recommend that Congress waive the main requirements of three federal education laws, including the Individuals with Disabilities Education Act, known as IDEA. The federal law ensures that children with disabilities have a right to a free, appropriate public education whenever and wherever schools are operating. However, advocates warn there are still areas to watch, including in New Jersey, where parents have been asked to waive their right to sue before districts are able to provide their children with special education services.
April 9 - Addressing Special Education During COVID-19 Pandemic
Disability Rights New Jersey (DRNJ) Staff Attorneys, Robert Robinson and Andrea Parente, along with Mike Marotta, Director, The Richard West Assistive Technology Advocacy Center (ATAC) provide important information about addressing special education concerns during the COVID-19 pandemic.
April 5 - Co-Sponsored Letter Opposing IDEA Waivers
March 30 - Co-Sponsored Letter Addressing Equality Issues for Public Schools
Disability Rights New Jersey co-sponsored a letter sent to Commissioner Repollet, Assistant Commissioner McDonald, and members of the Murphy Administration, letter that Disability Rights New Jersey co-sponsored relating to the COVID-19. Disability Rights New Jersey is an active participant in the NJ Special Education Law Practitioners group.
March 26 - Action Alert to Congress
National Disability Rights Network has created an alert that allows individuals to email Congress their opposition to this plan. Please let the members of Congress know that this is a bad idea and can be harmful to individuals with disabilities.
Alert: Congress using COVID-19 to Strip Students with Disabilities of Access to Special Education
Congress wants to give Secretary of Education Betsy DeVos unprecedented power to waive IDEA protections due to the COVID-19 pandemic. As a result, schools could opt out of providing a free and appropriate public education in the least restrictive environment, cancel individualized education plans, remove procedural safeguards and much more.