Parents learn rights of special-ed kids

HACKENSACK – If you choose to place your special-needs child in a non-public school, the child might not get all the services that would be available in a public school, and you won’t have as much power to make requests or file complaints about any aspect of those services.

These are the facts local Jewish parents learned at a Dec. 13 Bergen County Bar Association seminar at the county courthouse here. Its purpose was to clarify state and federal regulatory disparities in special education for children enrolled in public and non-public schools.

Susan Berger, chair of the administrative law committee for the state bar association — also a deputy state attorney general and a Teaneck mother — introduced two speakers she called experts: Rebecca Spar of the law firm Cole Schotz Meisel Forman & Leonard here, who has represented parents and children in several precedent-setting cases, and John Worthington, coordinator of dispute resolutions for the state Department of Education’s Office of Special Education.

"Many of us had heard, ‘No, you have no rights if your children are not in the pubic schools,’" said Berger in introducing the seminar.

While that’s not the case, Spar acknowledged that non-public-school students don’t have rights to the same level of services.

That’s because, unlike states including New York, New Jersey is not a Free Appropriate Public Education (FAPE) state, said Worthington. "Children who are parentally placed in non-public schools receive some services but not everything they’re entitled to in public schools." (Home-schooled children are entitled to speech therapy services at a local public school, but not to any other special-needs services provided by the school district in which they live.) Three types of programs — one federally funded and two state-funded — are potentially available to non-public school students in New Jersey. Local school districts are obligated to identify kids who need them. But aside from speech-correction services, they’re not obligated to offer these services in a non-public school; the school itself chooses what, if any, additional services to make available.

And rather than the individualized education plan (IEP) that public-school special-education students receive, special-ed students in private schools get a more generalized services plan (SP), Worthington explained.

"With an SP, the services are based on what’s available [at the particular school], as opposed to an IEP, which provides for a wider range of services," he said. The plan may be reviewed every three years, but — just as in public schools — a parent can waive the re-evaluation and simply continue the existing SP.

One important change that took effect this summer is that state-funded programs are administered in the district where the school is located rather than the student’s home district. This is relevant to many day-school families in New Jersey, as they often don’t live in the district where their children attend school. It’s also relevant to out-of-state residents attending non-public schools here.

The state services available under Title 19′ are "auxiliary and compensatory" for ages 5 to ‘0. They include, for example, English as a second language and home instruction because of medical situations. "The determination of eligibility is the same as in public schools, and as of July there is a single eligibility determination — made in the school district, not in the student’s home district," said Worthington. Standardized tests are used to determine needs, and annual assessments are required.

Services available under Title 193 for ages 5 to ‘1 are remedial, supplementary instruction, and speech-language services. An application for these services can be filed in the home or school district. Because the 13 eligibility categories are identical to those under the federal program, kids who qualify for 193 also automatically qualify for federal services under the ‘004 Individuals with Disabilities Education Act (IDEA).

Under IDEA, the federal government provides a special-services grant to states to be distributed to eligible students from age 3 to ‘1 (as of the ‘007 school year, it will not apply to preschoolers enrolled in non-public programs). Each district’s share is determined by data it collects on how many students need such services. Non-public schools don’t receive a share directly but may "consult" with the district to request IDEA-funded services for eligible children.

"You don’t necessarily receive everything you might need, but just to the extent there are funds available," emphasized Worthington. "The school can file an appeal if it feels the consultation wasn’t done properly. But remember that the proportional share can’t be supplemented with state funds, and because the grant money is distributed each July, if your kid enters school in January there may not be any more money available."

Parents can’t go to court to challenge the services being offered or provided under IDEA; they can only challenge identification and evaluation eligibility. They also can appeal if they believe the district is not spending all of its allotted money or not spending it appropriately.

Parental consent — one signature only — is needed for any federal or state special-needs service in a public or non-public school. The district cannot compel consent to evaluate or to receive services, said Worthington.

The services are provided by certified employees or contractees of the school district or county special services department, on or off site. If they’re off site, transportation has to be provided to and from the student’s school, said Worthington, but no matter where they’re offered they cannot include any religious content.

Forging and maintaining a good working relationship with the school’s director is of great importance in getting the best possible special-ed experience in a non-public setting, Spar said. It’s the director who can best handle problems that arise. For example, if a particular therapist is often absent or not doing a good job with a child, a complaint from the director of the school has more clout than a complaint from a parent.

"If you believe what your child is getting is not enough, that’s when you have to start looking at whether the public school will be a better place for an appropriate education," said Spar. "With an IEP you do have the right to challenge what the child is receiving, beyond advocating."

Parents often wish to explore what a public school can offer without first taking the child out of non-public school, she continued. Although IDEA requires districts to "locate, identify, and evaluate all children with disabilities" — even those enrolled by parents in private schools — they must develop an IEP only for students registered in a district public school. Many, Spar said, are willing to do so even if the child is registered only on paper.

"I’ve found most districts will do the IEP and decide the eligibility question and then you can make a choice and look at the alternatives," Spar said.

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