COVID-19 and Out-of-District Placement in NJ

Your Child’s Special Needs

This year, In New Jersey, parents will have the option of remote learning, as during the last four months of last year, or in-school learning, if the district chooses to do so. Remote learning has proved to be less effective in teaching than in-school learning. This has been shown to be particularly true with many students with special needs. Many parents have been looking at out-of-district (OOD) schools which will provide an in-school learning environment. These are often private or parochial schools. If you are considering such a placement for your child, you should:

1. Make certain you understand the ramifications of OOD placements.
2. Discuss the matter with your school district; ask your school district for any recommendations.
3. Visit, with your child, the schools in which you may be interested.
4. Make certain you understand your child’s legal rights.

Talk to an attorney whose area of expertise is with special needs children. This is too important a decision in your child’s life to do it on your own.

Your son or daughter’s IEP specifies your child’s education plan to succeed in school. It specifies his or her, present status and levels of academic achievement and behavioral performance, and the upcoming goals and objectives as guides to a successful year. Further, it states which special services and accommodations must be made to ensure that your child meets those goals and objectives.

Finally, it measures his or her progress toward the achievement of the goals and objectives. Often, your child may not make the progress that you or the Child Study Team (CST) desired, thereby placing your child further behind in school than at the outset. If this has happened before, and your child continues to lag farther, despite changes being made to the IEP, the program and/or the staff, you and/or the CST may determine that what your child needs is not available at his or her present school or placement. An out-of district (OOD) placement may be necessary. An out-of-district placement is a specialized school or program that is outside of your local school district, such as a private school, a charter school, another public school, or a residential school where your child would live on a full time basis.

Placing a child in an out-of-district placement can be a particularly contentious topic from several perspectives.

1. First and foremost is your child. How would such a move affect him or her emotionally and behaviorally? Is he or she happy in the present environment? How would the move affect this? Will he or she miss friends at the present school? How will all of this affect your child’s learning? An OOD is not a miracle cure for your child. Since you are seeking OOD, the relationship with your local school district may have become strained. Your child has not progressed as planned, or may have regressed. Consequently, you may not wish to continue working with some of the teachers and staff any longer. However, the new placement may not be the cure-all you had intended. Your child may or may not succeed. Be aware that new problems may arise.
2. The present school district, which relies heavily on local taxes is now seen as being unable to accommodate the needs of all of its students? As a former school superintendent, I was often questioned during my annual budget presentations as to the number of students we sent out of the district. However, it is true that each school district may not be physically able to provide every need for every child. Further, the OOD tuitions are usually higher than what students cost in the local district. This is enhanced by increased transportation costs. By law, school districts are required to provide an “appropriate education,” not the “best education.” Consequently, this could be another reason to object to paying for your child to attend an outside school. However, it is not a good one, as the district must provide the education for your child to achieve the goals and objectives that the CST developed. If your District has demonstrated an inability to provide that education for your child, OOD has to be considered.
3. The parents’ perspective. You believe that your child will finally be making progress in achieving his or her goals. Prospects for your child appear brighter. However, re-read #1 above. There are no guarantees. Consequently, before you even consider an OOD placement, carefully research the ones you are considering in your area. Ask your CST for opinions, and if they can make arrangements for you and your child to visit them. The CST is usually amenable to this.

Consider your local school district as a continuum. At one end of this continuum, a child with special needs is in a general education classroom with the appropriate modifications and accommodations, as detailed in his or her IEP. From this point, the child may be given a pull-out program into a Resource Room for some areas of the curriculum. Further into the continuum, the child can be placed into a Special Education classroom. If none of these succeed, what is the next step in the continuum? You, the parent, must decide with the CST whether or not a suitable placement exists within the school district.

This means that the decision to put your child into an OOD placement hinges on three main points:

• Your child is not making adequate progress in achieving IEP goals and continues to lag and fall farther behind his non-disabled peers, despite where he or she is placed in the school district’s continuum.
• Your child’s medical, social, emotional, and behavioral needs can only be met in a specialized program, which is not working in his or her present setting.
• There is no program in your district to meet your child’s special education needs.

Schools and parents often disagree on some of these points. However, regardless of this disagreement. Your child must receive the education to which he or she is entitled. To accomplish this, several courses of action can be taken:

1. Work in a collaborative manner with the CST to gather data. This may entail additional evaluations. If the school disagrees, you may have to bear the costs involved (with the hope to recoup some or all of these costs at a later time). In addition, you may need the assistance of an attorney or advocate, who has worked in special education law and can interpret the results of past and/or future evaluations, especially as they may support your position. This is very important.
2.  Is there another placement alternative within the district, or a neighboring public school district? This is often amenable to the district, as costs are much lower than the placement in a non-public school.
3. What would be the effect on your child if he or she were placed in a different setting within his present school, or sent to a neighboring school district? Depending on your child’s age, strong emotional attachments may be severed by such a move.
4. Explain to your district what you want from your child’s placement and school setting. Ask the CST if they know of nearby schools which may be able to accommodate your desires and help your child to achieve his or goals better than he or she has demonstrated. Further, ask if you could visit those suggested schools. This does not obligate anyone. It demonstrates your trust in your CST, and it demonstrates the CST’s trust in you to be fair when analyzing alternative placements.
5. Before finalizing any part of an IEP change, including out-of-District placement, make certain that any change you may request be accompanied by a prior written notice form. This informs the district that if they deny your recommendations, they must provide you with the reasons they denied them. Further, the district must provide a description of the evaluations and assessments, records, or anything else the district used as a basis for its denial. This must be done in writing, as it will be material that can be used if you proceed to mediation and/or a due process hearing.
6. If the district and you cannot agree, you can often unilaterally remove your child from the public school and place him or her into another school. There are several problems associated with this scenario – You may have to pay all costs, including tuition and transportation (and hope to recoup those costs at a due process hearing). This will be explained below. Further, how do you know that the school you chose will be able to provide your child those things that you claim were not provided by the public school? Again, what will the emotional impact of the move be on your child? Make certain you have sufficient educational and emotional support before taking this step. Even if your school district refuses to pay for your move, your CST can provide you with the names of schools in your area that may be a good move for your child – if you insist on removing him or her from the local school district.
7. The best of scenarios occurs when the parents and the school district arrive at a mutually-agreeable solution that is deemed beneficial to your child. It is usually best when the home and the school work in unison for your child’s interests. However, even here, it is important to follow your child’s progress reports toward the IEP goals and objectives.

How do you prove that your child’s current public school is not adequately meeting his or her specialized needs? This is not an easy task and requires significant effort on your part. It will require recent evaluations and assessments from various specialists. Depending on your child’s needs and classification, you may have to get reports from many of the following people:

1.  First of all, you! What areas or especially concern you in the present and the future if your child continues on his or her present path? Do these indicate that his present placement is inadequate? Can you prove this?
2. School and teacher feedback you received in the recent past that substantiates your position (e-mails, texts, documented phone calls, face-to-face meetings)
3. If medical issues are involved, you should have recent evaluations and assessments from your child’s psychiatrist, psychologist, sociologist, pediatrician, neurologist. None of these reports should be older than 3 years. If they are, request new evaluations, to which you are entitled. If you wish, you can hire your medical consultation and use his or her document during the process. While you may have to pay for this yourself, it may be recouped at a mediation or due process hearing, which will be explained later.
4. You should also have recent reports from your child’s speech/language teacher, occupational therapist, physical therapist, guidance counselor, the child study team members, and each of his or her subject matter teachers.
5. You should also be prepared to discuss any appropriate accommodations, modifications, and changes that the district can make to your child’s program to make it more suitable and enable the attainment of the IEP goals and objectives. If the district can show that these changes may likely have the intended results, this could be persuasive to a mediator or judge at a due process hearing. Obviously, if the changes do not work, your child loses more time toward his or her development.

What Do the Test Scores Mean?

You need to understand the meanings of your child’s test scores and the above evaluations and assessments. This is true regardless of the types of tests he or she has taken, including:

1. Teacher tests
2. Standardized district-wide tests
3. State tests
4. Psychological tests
5. Physiological tests
6. Neurological tests
7. IQ tests and Intellectual evaluations
8. Medical tests
9. School specialists’ tests
10. Assessments of reading, speech, writing and language arts, mathematics, hearing, vision, sensory, motor skills, or behavior assessments.

If you understand the significance of the test results, you and the school can identify your child’s strengths and weaknesses, and what his or her needs are. Further, you can monitor how well or how poorly your child responds to his educational program. Is he or she improving? Remaining the same? Or regressing? The answers to these questions, provide you and the school with facts regarding the adequacy of his or her placement.

Statistics

Understanding the kinds of tests and assessments used on your child is only a beginning. Understanding the meanings of their results can be the key to an out-of-District placement. Consider the purpose of the IEP – to move your child from where he or she was at the beginning of the year, given his or her needs, and move him or her to where he or she should be at the end of the IEP year. If the plan was successful, your child will have overcome the needs that existed at the beginning of the year. If it was not successful, the IEP was inadequate. If this is done consistently over several years, it becomes a clear indication that the district has:

1. Not properly addressed your child’s needs in writing the goals and objectives.
2. Not made the proper modifications and accommodations to assist in the satisfactory achievement of the goals and objectives.
3. The staff was not effective in providing your child instruction needed to satisfactorily achieve the goals and objectives.
4. Continuing along, as in the past, has not been successful in helping to overcome your child’s needs. This can only lead to the conclusion that the present placement is not succeeding and must be changed.

If you are unfamiliar with topics such as: the difference between norm-referenced and criterion-referenced tests, the bell curve, the mean, and standard deviation, percentile ranks, and grade equivalent, seek help from someone who can explain them to you. These tools are used to measure your child’s progress or lack thereof.

What Now?

From the above and with the knowledge and understanding of the test results, you are prepared to analyze where your child is in a variety of areas (see the 1-10 listing above). When the IEP was prepared, were all of your child’s needs addressed by the goals and objectives? You can look at the scores from those assessments and actually see where the needs were. Has he or she progressed from where he or she was at the beginning of the IEP year? Are you satisfied with any progress that was made? Were his or her goals and objectives satisfactorily achieved? If not, why not? We’re the goals and objectives modified. To answer each of these, you will know and understand the statistics to prove your point

All of this provides you with the information to have an informed discussion with the CST to decide whether or not your child’s present placement and program is sufficient. If not, this should initiate the discussion for OOD. Ask what they recommend to provide a more successful program for your child? This is the time to ask for recommendations of other schools. Ask the CST to arrange for you to visit the school.

At this point, you may have arrived at the conclusion that a particular OOD is best for your child. Besides the reasons you have provided why the present placement shows little satisfactory progress, the reasons why your requested placement can be successful must be presented. While you have many areas where you believe have been shown, the proposed new setting will usually help you to reinforce your presentation to the CST.

If your district decides to reject your proposal, it becomes necessary for you to resort to legal recourse: mediation and/or due process. I recommend you file petitions for both – mediation and due process hearings. This makes it easier in the event that the mediation process does not result in an agreement.

Mediation and Due Process

In the PRISE MANUAL, which the district provided you at your child’s last IEP, you will find the steps you must take to file for a Mediation or Due Process hearing. I recommend consulting an attorney first.

What is mediation?

Mediation involves the local school district, you, and the mediator. He or she is a neutral individual who uses an informal process to get an agreement between you and the school. He or she focuses on your child’s current skills and needs as a foundation for exploring the possibility of an agreement. He or she will also consider what the school district has done in the past and may be able to do next for your child to succeed. All comments and offers made during the mediation sessions are confidential and cannot be used in another forum. If you do arrive at an agreement through the mediator, it will be signed by all parties, and will be enforceable.

In the case of OOD, I have found mediation not to be effective since both parties are adamant in their positions, usually to the point of getting attorneys involved.

What is a Due Process Hearing?

Due process hearings are formal in nature and conducted by administrative law judges. You and the school argue your positions by presenting documentation, witnesses, and other evidence to support your respective sides, and be subject to cross-examination. The judge is likely to hear and consider more detailed history, especially with regard to procedural violations or failure of the school staff or you to fulfill your obligations in the past. The judge will maintain control of the hearing environment while ensuring both parties are permitted to present their cases. Further, the proceedings will be on the record, which will be confidential, but will be used if the case is appealed to another court of law or the Commissioner of Education.

Just as in a normal court of law, you may act as your own attorney. The school district will have its own attorney, who is usually experienced in these matters. After the hearing the judge will make his or her decision and present it in writing. Either you or the school district may appeal the judge’s decision within 90 days of that decision. That appeal will go to the Commissioner of Education.

Emergent Relief

Once you file a due process hearing, it could take as long as 45 days or longer for the case to be heard. If you believe that such a delay would result in serious harm to a child, you can ask for emergent relief as part of your due process request. Some examples of the need for emergent relief include: your child may not be receiving any educational services, or the current school placement is causing harm to him or her. Emergent relief can be granted under certain circumstances:

1. There is a break in services such as speech, OT, PT, transportation,
   paraprofessional, etc.,
2. School setting or home instruction placement,
3. Disciplinary issues,
4. Graduation details such as prom attendance, participation in
   graduation activities.

To apply for emergent relief, you should fill out an emergent relief request along with your due process request. You will need to demonstrate that:

1. Your son or daughter will suffer irreparable harm if the relief you are requesting is not granted.
2. You have a likelihood of winning your underlying claim on the merits.
3. You will suffer greater harm than the school district if the relief you have requested is not granted.
4. The legal right underlying your claim is settled.

Stay Put

During the time until some resolution is reached, your child may stay in the current placement and receive his or her present level of services and accommodations.

However, it is very important that you provide notice to the District and it is not guaranteed that stay put will be in effect… To Invoke Stay put, New Jersey Law mandates that the parents give the District 15 days written notice before making any change of placement. The District can file a due process petition against you if they disagree. In addition, the notice is not done correctly to the District. Stay put is critical that the notice and time be done correctly. It is the difference between you paying out of pocket for the out of District Placement, or the District pay for placement while you litigate your cases.

While a lot of this information may be overwhelming, we have had a number of cases where out of District Placement has occurred without any litigation. We have successfully shown the District the need for out-of-district placement saving our clients lots of money. We are a law firm that cares about doing the right thing!

If you have any questions regarding any special education issue which may affect your child, contact us at 732-637-5248 for a fresh consultation. We are located at: Susan Clark Law Group: 35 Court Street, Freehold, NJ 07727. 732-637-5248
Our only concentration is on special education law and its implications on your children.