What Qualifies a Child for Special Education in NJ?
In the state of New Jersey, the right to an education has specific, robust legal protections. All New Jersey residents are entitled to a free and appropriate education in their local public school system from pre-K to grade 12. However, the key word in this principle is “appropriate” – every student is unique, meaning their educational needs differ, and having a disability can mean that those needs take special support to meet.
If you have a child who attends a New Jersey public school but is having academic or social difficulties, and you are unsure if they qualify for special education, the good news is that you are not alone. Countless parents have been in your position before, and at SGW Law, we have decades of experience helping families access the educational resources their children have a legal right to. Get in touch with the NJ education attorneys on our team now, or read more about the regulations surrounding special education in New Jersey below.
How is Special Education Defined in the State of NJ?
New Jersey defines special education based on section 1401 of the 1990 Individuals with Disabilities Education Act (IDEA), a landmark federal law. The relevant text says that special education refers to “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability” – in public schools, it may take place in either a classroom or physical education setting.
The Basic Qualifications for Special Education in NJ
A school-aged child may need some form of special education for any number of reasons related to their physical or mental health or their development. However, no matter the cause of the student’s special education status, there are three overall qualifications that need to be met. These are as follows: Documented disability, impact on educational performance, and need for specific types of instruction or services.
In other words, first, the child must be seen by a medical professional and diagnosed with a disability that falls under one of 14 classifications. Then that disability must be shown to affect the child’s experience at school. For example, a child who has suffered a traumatic brain injury (TBI) may have few memory-related symptoms, or may have short-term memory issues severe enough to make them unable to recall a teacher’s directions for in-class assignments. Finally, the disability must have a connection to the details of the student’s educational support – such as a hearing-impaired student receiving note-taking assistance, which can help make sure that child learns the material as well as their peers.
The 14 Classifications Under NJ Special Education Law
New Jersey law categorizes conditions that can qualify a student for special education under 14 general types of disability. Among them are represented both congenital and acquired health conditions that may be considered physical, psychological, developmental, and/or social. These classifications are: Auditory impairment, visual impairment, deaf/blindness, orthopedic impairment, communication impairment, intellectual disability, autism, specific learning disability, emotional regulation impairment, social maladjustment, traumatic brain injury, other health impairment, multiple disabilities, and preschool child with a disability.
How a Child is Referred for Special Education Evaluation
An evaluation referral for a child who is a candidate for special education can come from a number of sources. Often, the person who makes the referral request is the child’s teacher, as this is who has the greatest knowledge of how that child is doing in an educational setting. However, parents may also submit a referral, as can pediatricians, child psychologists, and other professionals who work directly with the child.
In most cases, New Jersey law requires interventions such as extra academic help to be used before a teacher makes a referral, with documentation to be maintained. If the student’s record shows that they are not making sufficient progress in general education classes despite this intervention, then their referral can proceed. For some students, this is not a requirement if their needs are urgent enough that evaluation is “warranted without delay”. If the request for evaluation is submitted directly by a parent, it will also be immediately considered by the child study team.
The Evaluation and Eligibility Determination Process
Before the evaluation, under New Jersey law, the student who has been referred will have hearing and vision screenings – this is to make sure that they can properly hear and see during lessons from their current teachers. Younger children may not be able to understand or express a partial sensory impairment of this kind, so it may be the true cause of their academic difficulties without the adults around them knowing. There are many cases of students who are prescribed hearing aids or glasses as a result and go on to great success in a general education track.
The path to a student’s special education must take no more than 90 days after parental consent for referral – usually and ideally much less time. Evaluation for special education eligibility is a collaborative process with quite a few stakeholders. Leading the evaluation will be the child study team, which legally must at least include a school psychologist, a school social worker, and a teacher-consultant who specializes in learning disabilities, all of whom should be full-time school district employees.
These team members, the student’s general education teacher, and at least one of the student’s parents meet to share a large quantity of information. Any existing evaluation data, parents’ input from their child’s academic ability regarding homework and behavior at home in general, teachers’ observations, and the child’s medical diagnoses are all collected. After this first meeting, the student will also be formally observed at least once by any qualified professional in a classroom setting. Other specific data is needed in certain cases, like a suspected speech disorder. Once the child study team members submit their written reports based on all of the above, the student can be declared eligible for special education. As noted, any student who has a disability from one of 14 categories that affects how they do at school – and therefore has instructional needs beyond general education – is eligible.
What Happens After a Child Qualifies?
Within 30 days of a student officially qualifying for special education in New Jersey, a team of professionals will create an individualized education program (IEP) in consultation with the student’s parents. Once the IEP is finalized, it must be implemented as soon as possible, and school districts must have an up-to-date IEP for every current special education student at the beginning of the school year.
The purposes and methods of an IEP depend on many factors, but most important are what NJ state law refers to as “the strengths of the student”, “the concerns of the parents”, and “the academic, developmental, and functional needs of the student”. IEPs tend to be comprehensive in scope and can include items such as assistive technology, behavioral interventions, communication assistance, speech therapy, and many others. An individualized education program can be amended or added to after a meeting of the IEP team, or without a meeting if a parent consents to a written proposal or provides a written request that the team agrees to.
IEPs also include measurable annual goals and shorter-term benchmarks for student progress, which are the subject of yearly review meetings. Older children, aged 14 and above, will have “a statement of the student’s strengths, interests, and preferences” in their IEPs, which provide a map for a course of study that will help them develop these interests as well as independent living skills. Every three years, regardless of age, students who have an IEP are subject to a triennial review to determine if they are still eligible – some NJ schoolchildren have made so much progress in special education that they can transition back into general education courses.
When a Child Does Not Qualify
If a student is not considered eligible for special education and does not receive an IEP, this doesn’t mean that child cannot access educational support from the school district. In New Jersey, schoolchildren without an IEP can still be enrolled in a 504 plan. There are many technical differences between an IEP and a 504 plan, but both can provide a tremendous degree of help to students who have health conditions. The main overall difference is that a 504 plan gives the child additional help in their general education curriculum, whereas an IEP provides a full-on specialized curriculum. A much broader swathe of students quality under Section 504, meaning accessing these benefits can be a lot easier for children and their parents.
Furthermore, parents of a child with an actual or suspected disability have the right to appeal any decision regarding that child’s academic placement. This may include an independent evaluation – a “second opinion” by an outside professional that can be formally submitted alongside the child study team’s report. This process of dispute can be a complex and fraught legal matter, but it is one that the team at SGW Law has helped families successfully navigate many times over.
Final Thoughts: Advocacy and Resources for NJ Families
Most of the time, school districts and child study team members have students’ best interests at heart. However, there are times when the special education eligibility process or the provisions of an IEP do not meet a student’s needs, and the professionals involved are not responsive. In this case, the student is deprived of their right to an appropriate education, and they and their parents need the help of advocates.
An experienced education lawyer is the single most effective kind of advocate in this case, but parents’ groups, medical and psychological professionals, and caseworkers can all play important roles in getting a student the help they need. The Office of Special Education in the New Jersey Department of Education also provides families with resources including information and consultation.
Contact Our Special Education Attorneys
The SGW Law team is composed of some of the most skilled education attorneys in the state of New Jersey, and we are committed to helping young people with special needs and their families. If your child’s school is not providing an education in accordance with your child’s needs, get in contact with us online now. We give our all to help NJ students, whether it’s in IEP meetings or the courtroom.