Updated: May 6
If you are involved in New Jersey special education, you may have heard the following three things this week:
Betsy DeVos, the United States’ Secretary of Education, made clear that she would not ask Congress to waive the core requirements of the Individuals with Disabilities Education Improvement Act (more commonly “IDEA”) or Section 504, both laws that ensure students with disabilities receive an appropriate education, during COVID-19 closures.
Some New Jersey school districts attempted to have parents sign a purported “waiver” of rights in order to obtain remote special education supports.
On Tuesday, April 28, 2020, during an NJ Spotlight on-line Zoom event, a panel of speakers, including Dr. Peggy McDonald, Assistant Commissioner for the New Jersey Department of Education’s Division of Student Services, and Dr. Kim Buxenbaum, Director of the New Jersey Department of Education’s Office for Special Education, offered comments on the state of New Jersey special education during school closures.
Despite news about the topics above being widely shared, the headlines warrant a few comments and closer examination. Here are some thoughts: 1. Headline: Secretary DeVos did not ask Congress to waive the free appropriate public education (“FAPE”) or other basic requirements of the IDEA and Section 504 during COVID-19 closures.
Surely, it is a relief to know that, for now, needed protections for individuals with disabilities remain in place. Yet the headline obscures the many remaining challenges of serving disabled students remotely. Most complicated, perhaps, is reaching the thousands of students who cannot benefit from remote instruction, whether due to disability, lack of equipment or other barriers. For the students who can access remote special education, parents, administrators and educators are still left with many unanswered questions about how to implement the specific procedural and substantive provisions of these laws. Included in the unanswered questions are how to make programming decisions given pending or new evaluations. Secretary DeVos granted some flexibility in evaluating students receiving Early Intervention transitioning to pre-school programs. As for school-age students, the current federal guidance clearly states that evaluations may be postponed until school resumes.
This sounds straightforward but presents additional issues in practice. New Jersey currently has no specific directives on school-age evaluations during school closures beyond what the federal guidance offers.
Educators and parents will benefit greatly from more precise, detailed guidance about evaluations from both the US DOE and NJ DOE, especially since both Departments have made clear that many students may be entitled to compensatory education. Perhaps NJ will soon issue clarifying guidance on evaluations, as the Pennsylvania Bureau of Special Education recently did on the issue of early intervention evaluations. See:
In the meantime, keep an eye on the New Jersey Department of Education’s COVID-19 updates, https://www.nj.gov/education/covid19 as well as new guidance from the U.S. Department of Education and Office for Civil Rights. And, the Advo-Kids team is always here and ready to answer questions related to your specific situation! Watch for updates here, on our website, and in on our social media. 2. Headline: According to news reports, some New Jersey school districts attempted to have parents sign a purported “waiver” of liability, including special education rights, in order to obtain special education supports.
UPDATED! May 1, 2020: The NJ Department of Education issued guidance making clear that:
“Requiring the execution of a waiver or release of present or future claims as a condition to implement a student’s IEP is prohibited.”
You can read the Department’s guidance here:
During the NJ Spotlight event on April 28, 2020, discussed more below, Dr. Peggy McDonald clearly directed parents who receive a waiver of rights that conditions receipt of special education services on signing to immediately contact their local, County-level office for Special Education or the New Jersey Special Education Ombudsman at 609-376-9060.
Do not sign a form that is confusing or unclear. Contact the offices above (as directed in the Department’s April 30th, 2020 memo).
Also important: While some Districts were asking parents to sign basic consent forms for the provision of remote services, which did not seek to waive any parental rights, the Department’s guidance states that parental consent is not required to initiate remote supports.
3. Headline: On Tuesday (April 28, 2020) during an NJ Spotlight on-line Zoom event, Dr. Peggy McDonald, Assistant Commissioner for the New Jersey Department of Education’s Division of Student Services, and Dr. Kim Buxenbaum, Director of the New Jersey Department of Education’s Office for Special Education, shared some insight and comments on the state of New Jersey special education during school closures.
These state-level officials were joined by two other experienced panelists, special educator Linda Shanahan, and parent attorney Karen Edler. For the purpose of this “mini” blog, I focus on the comments of the state officials. This public event was a worthwhile discussion with a great opportunity to hear directly from state-level officials and those in the trenches of special education. The NJ Spotlight moderator indicated the video will be posted on the Spotlight’s website in the future.
As discussed above, the NJ Department of Education clearly opposes the use of general waivers of parent and students’ special education rights.
Dr. McDonald indicated that once students return to school IEP teams will determine if a student needs compensatory education. Please keep in mind that compensatory education (make-up services) are not being guaranteed.
Consistent with current federal and state guidance, Dr. Buxenbaum made clear that no IDEA timelines are waived, with the notable exception that an evaluation can be delayed if there is no way to conduct it. She suggested doing whatever is feasible, such as a records review in the interim, and then re-evaluating once school resumes.
Dr. Buxenbaum made clear that if a student is struggling right now, schools can and should still utilize the types of support normally implemented through a multi-tiered system of supports (NJ TSS) and/or Intervention and Referral Services (INRS).
Dr. Buxenbaum encouraged districts to continue to conduct progress monitoring on IEP goals, use this data to adjust instruction, have IEP meetings, and work collaboratively to problem-solve.
Dr. McDonald encouraged Districts to plan, at this point, for EITHER remote or live ESY, while parents and schools await further news on how long schools will remain closed.
Both officials emphasized the need for parents and schools to communicate often and work collaboratively together. The Advo-Kids team is here to help parents and schools navigate these uncharted waters. Contact us today for a free consultation about how we can best support you.