N.J.A.C. 6A:14, Special Education

Table of Contents

Subchapter 1. General Provisions

6A:14-1.1 General requirements

6A:14-1.2 District board of education eligibility for assistance under IDEA Part B

6A:14-1.3 Definitions

Subchapter 2. Procedural Safeguards

6A:14-2.1 General requirements

6A:14-2.2 Surrogate parents, wards of the State, and resource family parents

6A:14-2.3 Parental consent, notice, participation, and meetings

6A:14-2.4 Native language

6A:14-2.5 Protection in evaluation procedures

6A:14-2.6 Mediation

6A:14-2.7 Due process hearings

6A:14-2.8 Discipline/suspension/expulsion

6A:14-2.9 Student records

6A:14-2.10 Reimbursement for unilateral placement by parents

Subchapter 3. Services

6A:14-3.1 General requirements

6A:14-3.2 Case manager

6A:14-3.3 Location, referral, and identification

6A:14-3.4 Evaluation

6A:14-3.5 Determination of eligibility for special education and related services

6A:14-3.6 Determination of eligibility for speech-language services

6A:14-3.7 Individualized education program

6A:14-3.8 Reevaluation

6A:14-3.9 Related services

Subchapter 4. Programs and Instruction

6A:14-4.1 General requirements

6A:14-4.2 Placement in the least restrictive environment

6A:14-4.3 Program options

6A:14-4.4 Program criteria: speech-language services

6A:14-4.5 Program criteria: supplementary aids and services

6A:14-4.6 Program criteria: supplementary instruction and resource programs

6A:14-4.7 Program criteria: special class programs, secondary programs, and vocational rehabilitation

6A:14-4.8 Program criteria: home instruction

6A:14-4.9 Exceptions

6A:14-4.10 Statewide assessment

6A:14-4.11 Graduation

Subchapter 5. Providing Educational and Related Services

6A:14-5.1 General requirements

6A:14-5.2 Approval procedures for clinics or agencies

Subchapter 6. Requirements for Services in Nonpublic Schools

6A:14-6.1 Equitable participation under IDEA Part B

6A:14-6.2 Provision of programs and services under N.J.S.A. 18A:46A-1 et seq. and 18A:46-19.1 et seq.

6A:14-6.3 Fiscal management provided under N.J.S.A. 18A:46A-1 et seq. and 18A:46-19.1 et seq.

6A:14-6.4 End of the year report provided under N.J.S.A. 18A:46A-1 et seq. and 18A:46-19.1 et seq.

6A:14-6.5 Placement in accredited nonpublic schools that are not specifically approved for the

education of students with disabilities

Subchapter 7. Receiving Schools

6A:14-7.1 General requirements

6A:14-7.2 Approval procedures to establish a new approved private school for students with disabilities

6A:14-7.3 Amendment procedures for receiving schools

6A:14-7.4 Annual procedures for approved private schools for students with disabilities

6A:14-7.5 Responsibilities of district boards of education

6A:14-7.6 Provision of programs

6A:14-7.7 Termination or withdrawal from a receiving school

6A:14-7.8 Fiscal management

6A:14-7.9 Records

6A:14-7.10 Monitoring and corrective action

Subchapter 8. Programs Operated by The Departments of Corrections and Human

Services, and The Juvenile Justice Commission

6A:14-8.1 General requirements

6A:14-8.2 Procedural safeguards

6A:14-8.3 Provision of programs

Subchapter 9. Monitoring, Corrective Action, and Complaint Investigation

6A:14-9.1 Monitoring and corrective action

6A:14-9.2 Complaint investigation

Subchapter 10. Early Intervention Programs

6A:14-10.1 Early intervention programs serving children between birth and age three

6A:14-10.2 General requirements when district boards of education contract with early

intervention programs under contract with the Department of Health and Senior

Services for students age three

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Appendix G

N.J.A.C. 6A:14, Special Education

Subchapter 1. General Provisions

6A:14-1.1 General requirements

(a) The rules in this chapter supersede all rules in effect prior to September 5, 2006, pertaining

to students with disabilities.

(b) The purpose of this chapter is to:

1. Ensure that all students with disabilities as defined in this chapter, including students with

disabilities who have been suspended or expelled from school, have available to them a

free, appropriate public education as that standard is set under the Individuals with

Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 et seq.);

2. Ensure that the obligation to make a free, appropriate public education available to

each eligible student begins no later than the student's third birthday and that an

individualized education program is in effect for the student by that date;

3. Ensure that a free, appropriate public education is available to any student with a

disability who needs special education and related services, even though the student

is advancing from grade to grade;

4. Ensure that the services and placement needed by each student with a disability to

receive a free, appropriate public education are based on the student's unique needs

and not on the student's disability;

5. Ensure that students with disabilities are educated in the least restrictive

environment;

6. Ensure the provision of special education and related services;

7. Ensure that the rights of students with disabilities and their parents are protected;

8. Assist public and private agencies providing educational services to students with

disabilities; and

9. Ensure the evaluation of the effectiveness of the education of students with disabilities.

funded educational programs and services to students with disabilities.

1. Programs and services shall be provided to students age three through 21.

2. Programs and services may be provided by a district board of education at its option

to students below the age of three and above the age of 21.

3. Each district board of education shall provide information regarding services

available through other State, county, and local agencies to parents of children with

disabilities below the age of three.

(d) Each district board of education is responsible for providing a system of free, appropriate special

education and related services to students with disabilities age three through 21 that shall:

1. Be provided at public expense, under public supervision, and with no charge to the parent;

2. Be administered, supervised, and provided by appropriately certified and qualified

professional staff members;

3. Be located in facilities that are accessible to students with disabilities; and

4. Meet all requirements of this chapter.

(e) With the exception of students placed in nonpublic schools according to N.J.A.C. 6A:14-6.5,

all students with disabilities shall be placed in facilities or programs that have been approved

by the Department of Education according to N.J.S.A. 18A:46-14 and 15.

(f) Each district board of education shall ensure that the hearing aids worn by students who are

deaf and/or hard of hearing are functioning properly.

(g) All special education programs and services provided under this chapter shall be subject to

review and approval by the Department of Education.

(h) All public and private agencies that provide educational programs and services to students with

disabilities shall maintain documentation demonstrating compliance with this chapter.

(i) A school district shall not require a student to obtain a prescription for a substance covered

by the Controlled Substances Act (21 U.S.C. §§ 801 et seq.) as a condition of attending

school, receiving an evaluation for eligibility for special education and related services, or for

receiving special education and related services.

6A:14-1.2 District board of education eligibility for assistance under IDEA Part B

(a) For the purposes of this section, each district board of education and State agency program

that acts as a district board of education is eligible for assistance under IDEA Part B for a

fiscal year by having a special education plan that demonstrates to the satisfaction of the

Department of Education, through the county office of education (county office), that the

plan meets the conditions of (b) through (f) below.

1. If a district board of education has on file with the Department of Education through the

county office, a plan consisting of policies and procedures that have been approved by

the county office, including policies and procedures approved under Part B of the IDEA

in effect before December 3, 2004, the district board of education shall be considered to

have met the requirements for receiving assistance under Part B.

2. Amendments to policies, procedures, and programs shall be made according to the

following:

i. The approved policies, procedures, and programs submitted by a district board

of education shall remain in effect until the county office approves

amendments the district board of education deems necessary; or

ii. If the provisions of the IDEA Amendments of 2004 or its regulations are

amended, or there is a new legally binding interpretation of the IDEA by

Federal or State courts, or there is an official finding of noncompliance with

Federal or State law or regulations, the Department of Education, through the

county office, shall require the district board of education to modify its

policies, procedures, and programs only to the extent necessary to ensure

compliance with Federal and/or State requirements.

(b) Each district board of education shall have policies, procedures, and programs that are

approved by the Department of Education, through the county office, that are in effect to

ensure the following:

1. A free, appropriate public education according to N.J.A.C. 6A:14-1.1(b)1 is available to

all students with disabilities between the ages of three and 21, including students with

disabilities who have been suspended or expelled from school;

2. Full educational opportunity is provided to all students with disabilities;

3. All students with disabilities who are in need of special education and related

services, regardless of the severity of their disabilities, including students with

disabilities attending nonpublic schools, are located, identified, and evaluated

according to N.J.A.C. 6A:14-3.3;

4. Homeless students who are located, identified, evaluated, and determined eligible are

provided special education and related services in accordance with the IDEA,

including the appointment of a surrogate parent for unaccompanied homeless youths

as defined at 42 U.S.C. §§ 11431 et seq.;

5. An individualized education program (IEP) is developed, reviewed, and, as

appropriate, revised according to N.J.A.C. 6A:14-3.6 and 3.7;

6. To the maximum extent appropriate, students with disabilities are educated in the

least restrictive environment according to N.J.A.C. 6A:14-4.2;

7. Students with disabilities are afforded the procedural safeguards required by N.J.A.C.

6A:14-2;

8. Students with disabilities are evaluated according to N.J.A.C. 6A:14-2.5 and 3.4;

9. The compilation, maintenance, access to, and confidentiality of student records are in

accordance with N.J.A.C. 6A:32-7, Student Records;

10. Children with disabilities participating in early intervention programs assisted under

IDEA Part C who will participate in preschool programs under this chapter

experience a smooth transition and, by the student's third birthday, an IEP has been

developed and is being implemented according to N.J.A.C. 6A:14-3.3(e);

11. Services are provided to students with disabilities who are placed by their parents in

nonpublic schools according to N.J.A.C. 6A:14-6.1 and 6.2;

12. Students with disabilities who are placed in approved private schools for students

with disabilities or in schools pursuant to N.J.S.A. 18A:46-14 by the district board of

education are provided special education and related services at no cost to their

parents;

13. All personnel serving students with disabilities are appropriately certified and

licensed, where a license is required, in accordance with State and Federal law;

14. The professional development needs for professional and paraprofessional staff who

provide special education, general education, or related services are identified and

appropriate in-service training is provided;

i. The district board of education shall maintain information to demonstrate its

efforts to:

(1) Prepare general and special education personnel with the content

knowledge and collaborative skills needed to meet the needs of

students with disabilities;

(2) Enhance the ability of teachers, paraprofessionals, and related service

providers to use strategies, such as positive behavioral supports and

interventions, to address the conduct of students with disabilities that

impedes student learning;

(3) Acquire and disseminate to teachers, administrators, district board of

education members, and related services personnel, significant

knowledge derived from educational research and other sources and

how the school district will, if appropriate, adopt promising practices,

materials, and technology;

(4) Ensure that the in-service training is integrated to the maximum extent

possible with other professional development activities; and

(5) Provide joint training activities for parents and special education,

related services, and general education personnel;

15. Students with disabilities are included in all Statewide and districtwide assessment

programs with appropriate accommodations, where necessary;

16. Instructional materials will be provided to students who are blind or have print disabilities

in a timely manner, consistent with a plan developed by the school district;

17. For students with disabilities who are potentially eligible to receive services from the

New Jersey Children’s System of Care, within the Division of Children and Families

(formerly provided by the Division of Developmental Disabilities in the Department

of Human Services), the school district will provide to parents, pursuant to the

Developmentally Disabled Uniform Application Act, N.J.S.A. 30:4-25.10 et seq., the

necessary materials to apply for such services;

18. When the school district utilizes electronic mail, parents are informed as to whether

they may use electronic mail to submit requests to school officials regarding referral,

identification, evaluation, classification, and the provision of a free, appropriate

public education. If this is permitted, parents shall be informed of the procedures to

access the electronic mail system; and

19. A plan is in effect to establish stability in special education programming. The plan

shall take into account the consistency of the location, curriculum, and staffing in the

provision of special education services.

of its compliance with the requirements of (b)1 through 19 above.

(d) In accordance with instructions from the Department of Education, each district board of

education shall describe annually how it will use the funds under Part B of the IDEA during

the next school year.

(e) Annually, each district board of education shall provide the Department of Education:

1. A report of the numbers of students with disabilities according to their Federal

disability category, age, racial-ethnic background, and placement;

2. A report of the staff, including contracted personnel, providing services to identify,

evaluate, determine eligibility, and develop IEPs, and providing related services

and/or instruction to students with disabilities, as well as the full-time equivalence of

their assignments and relevant information on current and anticipated personnel

vacancies and shortages; and

3. Any additional data reports as required by the Department of Education to comply

with the IDEA (20 U.S.C. §§ 1400 et seq.), including, but not limited to, the number

of students with disabilities who:

i. Are exiting education;

ii. Are subject to suspensions and expulsions;

iii. Have been removed to interim alternative education settings;

iv. Are participating in Statewide assessments; and

v. Have achieved preschool and postsecondary transition outcomes.

(f) In addition to the reports in (e) above, each district board of education shall submit to the

Department of Education other reports upon request, including, but not limited to, the

number of students with disabilities by racial-ethnic group identified as potentially disabled,

evaluated, and newly classified.

(g) The district board of education shall make available to parents of students with disabilities

and to the general public, all documents relating to the eligibility of the district board of

education under Part B of the IDEA.

(h) Each district board of education shall ensure that a special education parent advisory group is

in place in the school district to provide input to the school district on issues concerning

students with disabilities.

6A:14-1.3 Definitions

Words and terms, unless otherwise defined below, when used in this chapter, shall be defined in the

same manner as those words and terms are defined and used in the IDEA (20 U.S.C. §§ 1400 et seq.)

and its implementing regulations at 34 CFR Part 300, which terms are incorporated by reference

herein.

"Adaptive behavior" means the ability to demonstrate personal independence and social

responsibility according to age and socio-cultural group expectations.

"Adult student" means a person who has attained age 18, who is not under legal guardianship, and

who is entitled to receive educational programs and services in accordance with Federal or State law

or regulation.

“Alternate assessment” means the same as “alternative assessment for students with disabilities” as

defined at N.J.A.C. 6A:8-1.3.

"Approved private school for students with disabilities" means an incorporated entity approved by

the Department of Education according to N.J.A.C. 6A:14-7.2 or 7.3 to provide special education

and related services to students with disabilities placed by the district board of education responsible

for providing their education.

"Assistive technology device" is defined in accordance with the definition of the term set forth in

IDEA and its implementing regulations at 34 CFR Part 300, incorporated by reference herein, and

reproduced at N.J.A.C. 6A:14 Appendix F.

"Assistive technology service" is defined in accordance with the definition of the term set forth in

IDEA and its implementing regulations at 34 CFR Part 300, incorporated by reference herein, and

reproduced at N.J.A.C. 6A:14 Appendix G.

"Consent" means agreement in writing that is required by this chapter. Consent shall be obtained

from the parent having legal responsibility for educational decision making. The district board of

education shall ensure that the parent:

1. Has been fully informed of all information relevant to the activity for which consent

is being sought, in his or her native language or other mode of communication;

2. Understands and agrees, in writing, to the implementation of the activity for which

consent is sought, and the consent describes that activity and lists the records (if any)

that will be released and to whom;

3. Understands that the granting of consent is voluntary and may be revoked at any time; and

4. If the parent revokes consent, that revocation is not retroactive (that is, it does not

negate an action that has occurred after the consent was given and before the consent

was revoked).

“Custody” means that a child has been removed from the care of his or her parent(s) by the State

agency empowered to do so and the right of the parent(s) to make educational decisions on behalf of

the child has been terminated by a court of appropriate jurisdiction.

"Department of Education" means the New Jersey Department of Education.

"District board of education" means, except as defined otherwise, the school district of residence, the

charter school board of trustees, the renaissance school project board of trustees, the State agency, or

other public education agency that acts as the school district of residence for the location,

identification, evaluation, determination of eligibility, development of an IEP and the provision of a

free, appropriate public education to students with disabilities.

“Dyslexia” means a specific learning disability that is neurobiological in origin. It is characterized

by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding

abilities. These difficulties typically result from a deficit in the phonological component of language

that is often unexpected in relation to other cognitive abilities and the provision of effective

classroom instruction. Secondary consequences may include problems in reading comprehension

and reduced reading experience that can impede growth of vocabulary and background knowledge.

"Early childhood program" means a general education program for students ages three through five

operated by an agency other than a district board of education. The early childhood program shall be

licensed or approved by the Department of Children and Families.

"Extended school year services" means special education and related services that are provided to a

student with a disability beyond the normal school year in accordance with the student's IEP at no

cost to the parent.

"Individualized education program" (IEP) means a written plan that sets forth a student’s present

levels of academic achievement and functional performance, measurable annual goals, and short-

term objectives or benchmarks and describes an integrated, sequential program of individually

designed instructional activities and related services necessary to achieve the stated goals and

objectives. This plan shall establish the rationale for the student's educational placement, serve as the

basis for program implementation, and comply with the mandates set forth in this chapter.

"IEP team" means the group of individuals who are responsible for the development, review, and

revision of a student's IEP. The members of the IEP team are listed at N.J.A.C. 6A:14-2.3(k)2.

"Native language" means the language or mode of communication normally used by a person with a

limited ability to speak or understand the English language. In the case of a student, the native

language is the language normally used by his or her parents. Except that in all direct contact with a

student (including evaluation of the child), the native language is the language normally used by the

student in the home or in the learning environment. The IEP team shall determine a student’s native

language.

"Nonpublic school" means an elementary or secondary school, other than a public school, within the

State providing education in kindergarten through grade 12, or any combination of grades in which a

student age five through 20 may fulfill compulsory school attendance and that complies with Title

VI of the Civil Rights Act of 1964 (P.L. 88-352).

"Nonpublic school student" means any student who is enrolled full time in a nonpublic school. A

student who boards at a nonpublic school shall be considered a resident of the school district in

which the parent resides.

“Office” means the Office of Special Education Policy and Dispute Resolution in the Department of

Education.

"Parent" means the natural or adoptive parent, the legal guardian, resource family parent when

willing to so serve, a surrogate parent who has been appointed according to N.J.A.C. 6A:14-2.2, or a

person acting in the place of a parent (such as a grandparent or stepparent with whom the student

lives or a person legally responsible for the student's welfare). Unless parental rights have been

terminated by a court of appropriate jurisdiction, the parent retains all rights under this chapter. For

the purposes of this chapter, the term "parent" shall include an adult student.

"Referral" means the written request for an initial evaluation to determine whether a student is

eligible for services under this chapter.

"Related services" is defined in accordance with the definition of the term set forth in IDEA and its

implementing regulations, incorporated by reference herein, and reproduced at N.J.A.C. 6A:14

Appendix B.

"Special education" is defined in accordance with the definition of the term set forth in IDEA and its

implementing regulations, incorporated by reference herein, and reproduced at N.J.A.C. 6A:14

Appendix C.

"Speech-language specialist" means speech-language specialist or speech-language specialist-equivalent.

"Statewide assessment" means the same as “assessment” as defined at N.J.A.C. 6A:8-1.3 and

includes the alternate assessment.

"Student" means a person age three through 21 who is entitled to receive educational programs and

services in accordance with Federal or State law or regulation.

"Student age" means the school age of a student as defined by the following:

1. "Age three" means the attainment of the third birthday. Children with disabilities

attaining age three shall have a free, appropriate public education available to them

provided by the district board of education.

2. "Age five" means the attainment of age five by the month and day established by the

district board of education as the kindergarten entrance cutoff date. Students with

disabilities attaining age five after the kindergarten entrance cutoff date shall continue

to be provided preschool services for the balance of that school year.

3. "Age 21" means the attainment of the 21st birthday by June 30 of that school year.

Students with disabilities attaining age 21 during the school year shall continue to be

provided services for the balance of that school year.

"Student with a disability" means a student who has been determined to be eligible for special

education and related services according to N.J.A.C. 6A:14-3.5 or 3.6.

“Transition services” for students age 16 or older is defined in accordance with the definition of the

term set forth in IDEA and its implementing regulations, incorporated by reference herein, and

reproduced at N.J.A.C. 6A:14 Appendix D. For students under age 16, “transition services” is

defined as set forth at N.J.A.C. 6A:14-3.7(e)11.

“Virtual instruction” means the same as that term is defined pursuant to N.J.A.C. 6A:32-2.1.

“Ward of the State” means a student who, pursuant to an order of a court of competent jurisdiction,

is under the guardianship of a State agency, is a child in resource family care for whom the resource

family parent is not the student’s parent, or is a student who, pursuant to an order of a court of

competent jurisdiction, is in the custody of the State child welfare agency.

Subchapter 2. Procedural Safeguards

6A:14-2.1 General requirements

(a) Prior to receiving a high school diploma, a student with a disability age 16 through 21 who

voluntarily leaves a public school program may reenroll at any time up to and including the

school year of his or her 21st birthday.

(b) Upon request by a parent, each district board of education shall provide copies of special

education statutes (N.J.S.A. 18A:46-1 et seq.), special education rules (N.J.A.C. 6A:14),

student records rules (N.J.A.C. 6A:32), and/or low cost legal or other services relevant to a

due process hearing and due process rules (N.J.A.C. 1:6A).

6A:14-2.2 Surrogate parents, wards of the State, and resource family parents

(a) Each district board of education or responsible State agency shall ensure that the rights of a

student are protected through the provision of an individual to act as surrogate for the parent

and assume all parental rights under this chapter when:

1. The parent cannot be identified;

2. The parent cannot be located after reasonable efforts;

3. An agency of the State of New Jersey has guardianship of the student or the student is

determined a ward of the State and, if the student is placed with a resource family

parent, the resource family parent declines to serve as the student’s parent; or

4. The student is an unaccompanied youth as that term is defined in section 725(6) of

the McKinney-Vento Homeless Assistance Act (42 U.S.C. § 11434(a)6) and N.J.A.C.

6A:17-1.2.

(b) A district board of education shall make reasonable efforts to appoint a surrogate parent

within 30 days of the determination that a surrogate parent is needed for a student.

judge may appoint a surrogate parent if the judge determines a surrogate parent is necessary

for such student.

(d) Each district board of education or responsible State agency shall establish a method for

selecting and training surrogate parents.

(e) The person serving as a surrogate parent shall:

1. Have no interest that conflicts with the interest of the student he or she represents;

2. Possess knowledge and skills that ensure adequate representation of the student;

3. Not be replaced without cause;

4. Be at least 18 years of age; and

5. Complete a criminal history review, pursuant to N.J.S.A. 18A:6-7.1, if the person

serving as the surrogate parent is compensated.

(f) The person(s) serving as a surrogate parent may not be an employee of the Department of

Education, the district board of education, or a public or nonpublic agency that is involved in

the education or care of the child. A surrogate parent may be paid solely to act in that

capacity.

(g) When a student who is or may be a student with a disability is in the care of a resource family

parent, and the resource family parent is not the parent of the student, the district board of

education where the resource family parent resides shall contact the student's case manager at

the Division of Child Protection and Permanency (DCP&P) in the Department of Children

and Families to:

1. Determine whether the parent retains the right to make educational decisions; and

2. Determine the whereabouts of the parent.

(h) If the parent retains the right to make educational decisions and the parent's whereabouts are

known to the district board of education, the district board of education shall obtain all

required consent from, and provide written notices to, the parent.

(i) If the district board of education cannot ascertain the whereabouts of the parent, the resource

family parent shall serve as the parent, unless that person is unwilling to do so. If there is no

resource family parent, or the resource family parent is unwilling to serve as the student’s

parent, the district board of education shall consult with the student's case manager at

DCP&P to assist in identifying an individual to serve as a surrogate parent, appointing a

surrogate parent, and obtaining all required consent from, and providing written notices to,

the surrogate parent.

6A:14-2.3 Parental consent, notice, participation, and meetings

(a) Consent shall be obtained:

1. Prior to conducting any assessment as part of an initial evaluation;

2. Prior to implementation of the initial IEP resulting from (a)1 above;

3. Prior to conducting any assessment as part of a reevaluation, except that consent is

not required if the district board of education can demonstrate that it had taken

reasonable measures, consistent with (k)7 below, to obtain consent and the parent

failed to respond;

4. Prior to the release of student records in accordance with N.J.A.C. 6A:32-7;

5. Each time a district board of education seeks to access private insurance covering a

student with a disability;

6. Prior to the first time a district board of education seeks to access a child’s or parent’s

public benefits or insurance covering a student with a disability in accordance with 34

CFR 154(d);

7. Whenever a member of the IEP team is excused from participating in a meeting

pursuant to (k) below;

8. Whenever an IEP is amended without a meeting pursuant to N.J.A.C. 6A:14-3.7(d);

and

9. Whenever a parent and district board of education agree to waive a reevaluation

pursuant to N.J.A.C. 6A:14-3.8(a).

(b) For a ward of the State, a district board of education shall make reasonable efforts to obtain

parental consent for an initial evaluation. If, after reasonable efforts, the parent cannot be

found, or parental rights have been terminated, or subrogated for purposes of consenting to

eligibility by a court of competent jurisdiction and consent has been given by an individual

the court has appointed, parental consent need not be obtained for an initial evaluation.

be finalized and the district board of education may not seek to compel consent through a due

process hearing. However, if a parent refuses special education and related services on

behalf of a student, the district board of education shall not be determined to have denied the

student a free, appropriate public education because the student failed to receive necessary

special education and related services, nor shall the district board of education be determined

in violation of its child-find obligation solely because it failed to provide special education or

related services to a student whose parents refused to provide consent for implementation of

the initial IEP. For the action set forth in (a)1, 3, and 4 above, if a parent refuses to provide

consent and the district board of education and the parent have not agreed to other action, the

district board of education may request a due process hearing according to N.J.A.C. 6A:14-

2.7(b) to obtain consent.

(d) Upon receipt of consent, the district board of education shall implement without delay the

action for which consent was granted.

(e) Written consent may be revoked by the parent, in writing, at any time.

1. Revocation of consent shall not be retroactive, and revocation shall not negate any

action that occurred after consent was provided and before consent was revoked.

2. If consent for special education and related services is revoked by the parent, the

district board of education shall not file for a due process hearing or otherwise

institute any legal proceeding seeking to overturn the parent’s determination.

3. When a parent revokes consent for special education and related services, the district

board of education shall provide written notice to the parent within 10 days of receipt

of the written revocation of consent. The district board of education shall cease

providing special education and related services to the student after the expiration of

the 15-calendar-day notice period unless the parent rescinds the revocation of

consent, in writing, within that time period.

4. If a parent revokes consent for special education and related services on behalf of a

student, the district board of education shall not be determined to have denied the

student a free, appropriate public education because the student failed to receive

necessary special education and related services, nor shall the district board of

education be determined in violation of its child-find obligation solely because it

failed to provide special education or related services to a student whose parents

revoked consent for implementation of services.

(f) Written notice that meets the requirements of this section shall be provided to the parent

when a district board of education:

1. Proposes to initiate or change the identification, classification, evaluation, or

educational placement of the student or the provision of a free, appropriate public

education to the student; or

2. Declines to initiate or change the identification, classification, evaluation, or

educational placement of the student or the provision of a free, appropriate public

education to the student.

(g) Written notice shall be in language understandable to the general public, and shall be

provided in the native language of the parent, unless it is clearly not feasible to do so

according to N.J.A.C. 6A:14-2.4. Written notice shall include:

1. A description of the action proposed or denied by the district board of education;

2. An explanation of why the district board of education is taking such action;

3. A description of any options the district board of education considered and the

reasons why those options were rejected;

4. A description of the procedures, tests, records or reports, and factors used by the

district board of education in determining whether to propose or deny an action;

5. A description of any other factors that are relevant to the action proposed or denied

by the district board of education;

6. A statement that the parents of a student with a disability have protection under the

procedural safeguards of this chapter, the means by which a copy of a description of

the procedural safeguards can be obtained, and sources for parents to contact to obtain

assistance in understanding the provisions of this chapter; and

7. A copy of the procedural safeguards statement published by the Department of

Education that contains a full explanation of the procedural safeguards available to

parents shall be provided only one time per year, except that a copy shall also be

provided:

i. Upon referral for an initial evaluation;

ii. Upon request by a parent;

iii. When a request for a due process hearing is submitted to the Department of

Education;

iv. When a request for a complaint investigation is submitted to the Department

of Education; and

v. When a student is removed for disciplinary reasons and the removal

constitutes a change in placement as described in N.J.A.C. 6A:14-2.8.

(h) Written notice according to (g) above shall be provided to the parent as follows:

1. The district board of education shall provide written notice no later than 15 calendar

days after making a determination;

2. The district board of education shall provide written notice at least 15 calendar days

prior to the implementation of a proposed action so that the parent may consider the

proposal. The proposed action may be implemented sooner, if the parent agrees in

writing;

3. The district board of education shall implement the proposed action after the

opportunity for consideration in (h)2 above has expired unless:

i. The parent disagrees with the proposed action and the district board of

education takes action in an attempt to resolve the disagreement; or

ii. The parent requests mediation or a due process hearing according to N.J.A.C.

6A:14-2.6 or 2.7. A request for mediation or a due process hearing prior to the

expiration of the 15th calendar day in (h)2 above shall delay the

implementation of the proposed action according to N.J.A.C. 6A:14-2.6(d)10

or 2.7(u).

4. The school district of residence may provide written notice less than 15 calendar days

prior to the implementation of a disciplinary action according to N.J.A.C. 6A:14-2.8(b)

when the IEP team and other appropriate personnel of the district board of education

determine that disciplinary action requires immediate implementation. Such written

notice shall be provided in accordance with the following:

i. The notice shall specify when the disciplinary action will be implemented and

shall meet all other requirements according to (g) above. Documentation of

the notice shall be maintained and shall include the reason(s) that notice for

less than 15 calendar days was warranted.

ii. During the pendency of mediation or due process related to the disciplinary

action, the student shall be placed in accordance with 20 U.S.C. § 1415(k) and

N.J.A.C. 6A:14-2.8.

5. Upon receipt of any written parental request to initiate or change the referral,

identification, classification, evaluation, educational placement, or the provision of a

free, appropriate public education, a response that meets the requirements of written

notice in (g) above shall be provided to the parent within 20 calendar days, excluding

district board of education holidays but not summer vacation.

i. When a meeting is required to make the determination and respond to the

parental request, the meeting shall be conducted, and a determination made,

within 20 calendar days, excluding district board of education holidays but not

summer vacation. Written notice of the determination shall be provided within

15 calendar days of the meeting.

(i) When a determination is made to conduct or not to conduct an initial evaluation, the parent

shall be provided with copies of the special education rules (N.J.A.C. 6A:14) and due process

hearing rules (N.J.A.C. 1:6A) in addition to the notice required in (g) above.

(j) A district board of education shall take steps to ensure that the parent is given the opportunity

to participate in meetings regarding the identification, evaluation, classification, or

educational placement of, or the provision of a free, appropriate public education to, the

student.

(k) Meetings to determine eligibility and develop an IEP shall be combined, if feasible, as long

as the requirements for notice of a meeting according to (g) above and (k)3 through 5 below

are met.

1. Any eligibility meeting for students classified according to N.J.A.C. 6A:14-3.5(c)

shall include the following participants:

i. The parent;

ii. A teacher who is knowledgeable about the student's educational performance

or, if there is no teacher who is knowledgeable about the student's educational

performance, a teacher who is knowledgeable about the school district's

programs;

iii. The student, where appropriate;

iv. At least one child study team member who participated in the evaluation;

v. The case manager;

vi. Other appropriate individuals at the discretion of the parent or district board of

education; and

vii. For an initial eligibility meeting, certified district board of education

personnel referring the student as potentially having a disability, or the school

principal or designee, if they choose to participate.

2. Meetings of the IEP team shall include the following participants:

i. The parent;

ii. At least one general education teacher of the student, if the student is or may

be participating in the general education classroom;

(1) If the student has no general education teacher, a general education

teacher who is knowledgeable about the school district's programs

shall participate;

(2) As a member of the IEP team, the general education teacher must

participate, to the extent appropriate, in the development, review, and

revision of the student's IEP;

(3) The general education teacher shall assist in the determination of

appropriate positive behavioral interventions and strategies; and

(4) The general education teacher shall assist in the determination of

supplementary aids and services, program modifications, or supports

for district board of education personnel that will be provided for the

student;

iii. At least one special education teacher of the student or, where appropriate, at

least one special education provider of the student;

(1) If there is no special education teacher or special education provider of

the student, a special education teacher or provider who is

knowledgeable about the school district's programs shall participate;

iv. At least one child study team member who can interpret the instructional

implications of evaluation results;

v. The case manager;

vi. A representative of the responsible district board of education who:

(1) Is qualified to provide or supervise the provision of specially designed

instruction to meet the unique needs of students with disabilities;

(2) Is knowledgeable about the general education curriculum;

(3) Is knowledgeable about the availability of resources of the district

board of education; and

(4) Shall be the child study team member or other appropriate district

board of education personnel, including the special education

administrator or principal;

vii. At the discretion of the parent or district board of education, other individuals

who have knowledge or special expertise regarding the student, including

related services personnel, as appropriate;

(1) The determination of the special knowledge or expertise shall be made

by the party (parent or district board of education) who invited the

individual;

viii. The student where appropriate;

ix. At the request of the parent, the Part C Service Coordinator for a student

transitioning from Part C to Part B; and

x. If a purpose of the meeting is to consider transition services, the student with

disabilities and a representative of any other agency that is likely to be

responsible for providing or paying for transition services shall be invited to

attend the IEP meeting.

3. Parents shall be given written notice of a meeting early enough to ensure that they

will have an opportunity to attend.

4. Meetings shall be scheduled at a mutually agreed upon time and place. If a mutually

agreeable time and place cannot be determined, the parent(s) shall be provided the

opportunity to participate in the meeting through alternative means, such as

videoconferencing and conference calls.

5. Notice of meetings shall indicate the purpose, time, location, and participants.

i. The notice of an IEP meeting shall inform the parents of the provisions in

(k)2vii and (k)2vii(1) above relating to the participation of other individuals

on the IEP team who have knowledge or special expertise.

ii. When a purpose of an IEP meeting for a student with a disability beginning at

age 14, or younger, if appropriate, is a discussion of transition services, the

notice of the IEP meeting shall indicate that:

(1) A purpose of the meeting will be the development of the transition

services for the student; and

(2) The district board of education will invite the student;

iii. When a purpose of an IEP meeting for a student with a disability beginning at

age 16, or younger, if appropriate, is a discussion of needed transition

services, the notice of the IEP meeting shall:

(1) Indicate that a purpose of the meeting is the consideration of transition

services for the student;

(2) Indicate that the district board of education will invite the student; and

(3) Identify any other agency that will be invited to send a representative.

6. If the parent cannot attend the meeting(s), the chief school administrator or designee

shall attempt to ensure parental participation. Parental participation may include the

use of electronic conference equipment to conduct a videoconference or conference

call.

7. A meeting may be conducted without the parent in attendance if the district board of

education can document that it is unable to secure the participation of the parent. The

district board of education shall maintain a record of its attempts to arrange the

meeting, including, but not limited to:

i. Detailed records of telephone calls made or attempted and the results of those calls;

ii. Copies of correspondence sent to the parents and any responses received; and

iii. Detailed records of visits made to the parent's home or place of employment

and the results of those visits.

8. Participants at the IEP meeting shall be allowed to use an audio-tape recorder during

the meeting, provided notice is given to the other participants prior to the start of the

meeting that such a device is being utilized.

9. A member of the IEP team whose area of the curriculum or related services is not

being modified or discussed may be excused from participation in the meeting, in

whole or in part, provided the parent and district board of education agree that the IEP

team member need not attend the meeting and the parent consents to such excusal in

writing.

i. All requests for consent for excusal of an IEP team member shall be included

with the notice of the meeting date and participants to ensure sufficient time

for the parent to review and consider the request.

10. A member of the IEP team whose area of the curriculum or related services is being

modified or discussed may be excused from participation in the meeting, in whole or

in part, provided the parent and district board of education agree that the IEP team

member need not attend the meeting and the parent consents to such excusal in

writing.

i. If there is a request to excuse a team member from the meeting, such member

shall provide written input with respect to their area of the curriculum or

related services. The written input shall be provided to the parent with the

notice of the IEP meeting date and participants to ensure sufficient time for

the parent to review and consider the request.

ii. All requests for consent for excusal of IEP team member shall be included

with the notice of the meeting date and participants to ensure sufficient time

for the parent to review and consider the request.

(l) The following activities shall not be considered a meeting that requires parental participation:

1. Informal or unscheduled conversations involving district board of education personnel and

conversations on issues such as teaching methodology, lesson plans, or coordination of

service provision if those issues are not addressed in the student's IEP; and

2. Preparatory activities that district board of education personnel engage in to develop a

proposal or response to a parent proposal that will be discussed at a later meeting.

(m) Except when a parent has obtained legal guardianship, all rights under this chapter shall transfer

to the student upon attainment of the 18th birthday. The district board of education shall provide

the adult student and the parent with written notice that the rights under this chapter have

transferred to the adult student. The adult student shall be given a copy of the special education

rules (N.J.A.C. 6A:14), the due process hearing rules (N.J.A.C. 1:6A), and the procedural

safeguards statement published by the Department of Education.

1. An adult student shall be given notice and shall participate in meetings according to

(a) through (k) above. The district board of education or the adult student may invite

the parent to participate in meetings regarding the identification, evaluation,

classification, or educational placement of, or the provision of a free, appropriate

public education to, the adult student.

2. Consent to conduct an initial evaluation or reevaluation, for initial implementation of

a special education program and related services, or for release of records of an adult

student shall be obtained from the adult student.

3. The district board of education shall provide any notice required under this chapter to

the adult student and the parent.

4. When there is a disagreement regarding the identification, evaluation, classification,

or educational placement of, or the provision of a free, appropriate public education

to, an adult student, the adult student may request mediation or a due process hearing

or authorize, in writing, his or her parent to request mediation or a due process

hearing and, while participating in such proceedings, to make educational decisions

on his or her behalf.

(n) The Department of Education shall disseminate the procedural safeguards statement to parent

training and information centers, protection and advocacy centers, independent living

centers, and other appropriate agencies.

6A:14-2.4 Native language

(a) Written notice to the parent shall be provided and parent conferences required by this chapter

shall be conducted in the language used for communication by the parent and student unless

it is clearly not feasible to do so.

1. Foreign language interpreters or translators and sign language interpreters for the deaf

shall be provided, when necessary, by the district board of education at no cost to the

parent.

(b) If the native language is not a written language, the district board of education shall take

steps to ensure that:

1. The notice is translated orally or by other means to the parent in his or her native

language or other mode of communication;

2. The parent understands the content of the notice; and

3. There is written documentation that the requirements of (b)1 and 2 above have been

met.

6A:14-2.5 Protection in evaluation procedures

(a) In conducting an evaluation, each district board of education shall:

1. Use a variety of assessment tools and strategies to gather relevant functional and

developmental information, including information:

i. Provided by the parent that may assist in determining whether a child is a student

with a disability and in determining the content of the student's IEP; and

ii. Related to enabling the student to be involved in and progress in the general

education curriculum or, for preschool children with disabilities, to participate

in appropriate activities;

2. Not use any single procedure as the sole criterion for determining whether a student is

a student with a disability or determining an appropriate educational program for the

student; and

3. Use technically sound instruments that may assess the relative contribution of

cognitive and behavioral factors, in addition to physical or developmental factors.

(b) Each district board of education shall ensure:

1. That evaluation procedures including, but not limited to, tests and other evaluation

materials according to N.J.A.C. 6A:14-3.4:

i. Are selected and administered so as not to be racially or culturally

discriminatory; and

ii. Are provided and administered in the language and form most likely to yield

accurate information on what the child knows and can do academically,

developmentally, and functionally unless it is clearly not feasible to do so; and

iii. Measure the extent to which a student who is an multilingual learner has a

disability and needs special education, rather than measure the student's

English language skills;

2. Any standardized tests that are administered:

i. Have been validated for the purpose(s) for which they are administered; and

ii. Are administered by certified personnel trained in conformance with the

instructions provided by the standardized tests’ producer(s);

3. The student is assessed in all areas of suspected disability;

4. Assessment tools and strategies that provide relevant information that directly assists

persons in determining the educational needs of the student are provided;

5. Tests are selected, administered, and interpreted, so that when a student has sensory,

manual, or communication impairments, the results accurately reflect the ability that

the procedure purports to measure, rather than the impairment, unless that is the

intended purpose of the testing;

6. The evaluation is conducted in accordance with the procedures at N.J.A.C. 6A:14-3 by

a multi-disciplinary team of professionals consisting of at least two members of the

child study team and, where appropriate, other specialists. At least one evaluator shall

be knowledgeable in the area of the suspected disability; and

7. In evaluating each student with a disability, the evaluation is sufficiently

comprehensive to identify all of the child's special education and related services

needs, whether or not commonly linked to the suspected eligibility category.

independent evaluation if there is disagreement with the initial evaluation or a reevaluation

provided by a district board of education. A parent shall be entitled to only one independent

evaluation at the district board of education’s expense each time the district board of

education conducts an initial evaluation or reevaluation with which the parent disagrees. The

request shall specify the assessment(s) the parent is seeking as part of the independent

evaluation.

1. Such independent evaluation(s) shall be provided at no cost to the parent, unless the

district board of education initiates a due process hearing to show that its evaluation is

appropriate and, following the hearing, a final determination to that effect is made.

i. Upon receipt of the parental request, the district board of education shall

provide the parent with information about where an independent evaluation

may be obtained and the criteria for independent evaluations according to (c)2

and 3 below. In addition, the district board of education shall take steps to

ensure that the independent evaluation is provided without undue delay; or

ii. Not later than 20 calendar days after receipt of the parental request for the

independent evaluation, the district board of education shall request the due

process hearing.

2. Any independent evaluation obtained at the district board of education’s expense shall:

i. Be conducted according to N.J.A.C. 6A:14-3.4; and

ii. Be obtained from another public district board of education, educational

services commission, jointure commission, a clinic or agency approved

pursuant to N.J.A.C. 6A:14-5, or a private practitioner who is appropriately

certified and/or licensed, where a license is required.

3. An independent medical evaluation may be obtained according to N.J.A.C. 6A:14-5.1(e).

4. Any independent evaluation submitted to the district board of education, including an

independent evaluation obtained by the parent at private expense, shall be considered in

making decisions regarding special education and related services.

5. If a parent requests an independent evaluation, the district board of education may ask

the parent to explain why he or she objects to the district board of education’s

evaluation. However, the district board of education shall not require an explanation

and the district board of education shall not delay either providing the independent

evaluation or initiating a due process hearing to defend the district board of

education’s evaluation.

6. For any independent evaluation, whether purchased at the district board of education’s or

private expense, the district board of education shall permit the evaluator to observe the

student in the classroom or other educational setting, as applicable.

7. If an administrative law judge orders that an independent evaluation be conducted, the

independent evaluation shall be obtained by the district board of education in accordance

with the decision or order of the administrative law judge, and the district board of

education shall pay the cost of the independent evaluation.

6A:14-2.6 Mediation

(a) Mediation is a voluntary process that is available to resolve disputes arising under this

chapter. Mediation shall be available for students age three through 21 when there is a

disagreement regarding identification, evaluation, classification, educational placement, or

the provision of a free, appropriate public education.

1. A request for mediation shall not be used to deny or delay the right to request a due

process hearing.

2. Mediation may be agreed to by a parent and district board of education in place of the

resolution meeting described at N.J.A.C. 6A:14-2.7.

(b) The district board of education may establish procedures that require a parent who chooses

not to use the mediation process to meet with a State mediator to discuss the benefits of

mediation. This meeting may take place by telephone or through the use of electronic

conference equipment.

person(s) with special knowledge or training with respect to the needs of students with

disabilities or with respect to the student who is the subject of the mediation.

(d) Mediation is available from the Department of Education through the Office. Mediation

shall be provided as follows:

1. To initiate mediation through the Office, a written request shall be submitted to the

Director of the Office;

2. The party initiating the request for mediation shall send a copy of the written request

to the other party. The written request shall note that a copy has been sent to the other

party. The mediation request shall specify the student's name, student's address,

student’s date of birth, name of the school the student is attending, the issue(s) in

dispute, and the relief sought;

3. A mediation conference, consistent with State law and rules, shall be scheduled

within 15 calendar days after receipt of a written request and completed within 30

days of the date of the request. At the mediation conference, issues shall be discussed

and options for resolution shall be explored;

4. The role of the mediator is to:

i. Facilitate communication between the parties in an impartial manner;

ii. Chair the meeting;

iii. Assist the parties in reaching an agreement and, if an agreement is reached,

the mediator shall prepare the document setting forth the agreement of the

parties at the mediation conference;

iv. Assure that the agreement prepared by the mediator complies with Federal

and State law and regulation;

v. When appropriate, adjourn the mediation to a date certain that is not more than

45 days from the date of the request for a mediation conference, at the request of

the parties to obtain additional information or explore options; and

vi. Terminate mediation if, in the mediator's judgment, the parties are not making

progress toward resolving the issue(s) in dispute;

5. The mediation conference shall be held at a time and place that is reasonably

convenient to the parties in the dispute;

6. If the mediation results in agreement, the conclusions shall be incorporated into a

written agreement that shall be prepared by the mediator at the mediation conference

and signed by each party. Mediation agreements shall not address special education

or related services for more than one school year. If the mediation does not result in

agreement, the mediator shall document the date and the participants at the meeting.

No other record of the mediation, including audio recording, shall be made;

7. Discussions that occur during the mediation process shall be confidential and shall not be

used as evidence in any subsequent due process hearings or civil proceedings;

8. Prior to commencement of the mediation conference, the mediator may, at his or her

discretion and upon request of a party, require that the parties sign a confidentiality

pledge to ensure that all discussions that occur during the mediation remain

confidential;

9. The mediator shall not be called as a witness in any subsequent proceeding to testify

regarding any information gained during the course of mediation;

10. Pending the outcome of mediation, no change shall be made to the student's

classification, program, or placement, unless both parties agree, or emergency relief

as part of a request for a due process hearing is granted by the Office of

Administrative Law according to N.J.A.C. 6A:14-2.7 as provided at 20 U.S.C. §

1415(k) (see N.J.A.C. 6A:14 Appendix A); and

11. Signed agreements resulting from mediation conducted according to this section are

binding on the parties. If either party fails to comply with any provision of the

agreement, either party may seek enforcement of the agreement in a court of

appropriate jurisdiction. If the parent believes the mediation agreement is not being

implemented as written, the parent may request enforcement of the agreement

provisions addressing the student’s program or services. The request shall be filed no

later than the 90th calendar day from the date that the action set forth in the mediation

agreement that is the subject of the enforcement request was required to have

occurred or have been completed. A request for enforcement of a mediation

agreement shall be made by writing to the Director of the Office. If there are multiple

clauses in the agreement, the 90-day time frame to seek enforcement shall be

measured separately for each clause, based on the date by which each is required by

the agreement to occur. Upon receipt of this request, the Office shall make a

determination regarding the implementation of the agreement. If it is determined that

the district board of education has failed to implement the agreement or part of the

agreement, the Office shall order the district board of education to implement the

agreement or part of the agreement, as appropriate. If any part of the mediation

agreement is modified by subsequent accord of the parties, enforcement may not be

sought with respect to that part of the agreement.

6A:14-2.7 Due process hearings

(a) A due process hearing is an administrative hearing conducted by an administrative law judge.

For students age three through 21, a due process hearing may be requested when there is a

disagreement regarding identification, evaluation, reevaluation, classification, educational

placement, the provision of a free, appropriate public education, or disciplinary action. For

students above the age of 21, a due process hearing may be requested while the student is

receiving compensatory educational or related services.

1. A request for a due process hearing shall be filed within two years of the date the

party knew, or should have known, about the alleged action that forms the basis for

the due process petition. The two-year period for filing for a due process hearing may

be extended by an administrative law judge if:

i. A district board of education specifically misrepresented to the parent that the

subject matter of the dispute was resolved to the parent’s satisfaction; or

ii. The district board of education withheld information that was required by law

to be provided to the parent.

(b) In addition to the issues specified in (a) above, the district board of education or public

agency responsible for the development of the student's IEP may request a due process

hearing when the district board of education is unable to obtain required consent to conduct

an initial evaluation or a revaluation, or to release student records. The district board of

education shall request a due process hearing when the district board of education denies a

written parental request for an independent evaluation in accordance with N.J.A.C. 6A:14-

2.5(c).

party initiating the due process hearing shall send a copy of the request to the other party. The

written request shall note that a copy has been sent to the other party. The written request shall

include the student's name, student's address, the student’s date of birth, and the name of the

school the student is attending. The written request also shall state the specific issues in dispute,

relevant facts, and the relief sought and, in the case of a homeless child, available contact

information for the child and the name of the school the child is attending.

(d) Except when a response is required to be filed by a district board of education pursuant to (e)

below, the party against whom a request for a due process hearing is directed shall provide,

within 10 days of the filing of a request for a due process hearing, a written response

specifically addressing the issue(s) raised in the request for a due process hearing to the party

that requested the due process hearing.

(e) When a parent requests a due process hearing, or an expedited due process hearing (for

disciplinary issues), and the district board of education has not sent a prior written notice to

the parent regarding the subject matter contained in the parent’s due process request, the

district board of education shall send a written response to the parent within 10 days of

receiving the petition. The written response shall include:

1. An explanation of why the district board of education proposed or refused to take the

action raised in the request for a due process hearing;

2. A description of other options that the IEP team considered and the reasons those

options were rejected;

3. A description of each evaluation procedure, assessment, record, or report the district

board of education used as the basis for the proposed or refused action; and

4. A description of the factors that are relevant to the district board of education’s

proposed or refused action.

(f) A request for a due process hearing, or expedited due process hearing (for disciplinary

issues), serves as notice to the respondent of the issues in the due process complaint. The

respondent may assert that the notice does not meet the requirements of 20 U.S.C. § 1415

and, therefore, the notice is not sufficient. The notice for a hearing will be considered

sufficient unless the respondent notifies the Office and the complaining party (petitioner), in

writing, within 15 days of receipt of the request for a due process hearing.

1. The sufficiency challenge will be forwarded to the Office of Administrative Law

(OAL) within five days of receipt of the written objection. An administrative law

judge will determine whether the notice meets the requirements of 20 U.S.C. § 1415

and will notify the parties, in writing, of the determination.

2. If the notice is determined sufficient, the timelines for resolution activities and for

conducting a due process hearing will continue. If the notice is deemed insufficient,

the administrative law judge may dismiss the case and the petitioner may re-file with

the Office, or the administrative law judge may grant permission to amend the

request.

i. If the case is dismissed and the petitioner files a new request for a due process

hearing, all applicable timeframes and procedures set forth in these rules shall

commence anew.

ii. If the administrative law judge allows the petitioner to amend the request for a

due process hearing as part of a sufficiency challenge, the applicable

timeframes and procedures shall commence to run from the time of the

administrative law judge’s determination.

(g) When the Office receives a request for a due process hearing, the matter shall be processed

and, as appropriate, mediation and a due process hearing in accordance with this chapter will

be made available to the parties.

(h) When a parent requests a due process hearing or expedited due process hearing, the district

board of education shall have an opportunity through a resolution meeting to resolve the

matter before proceeding to a due process hearing. The district board of education shall

conduct a resolution meeting with the parents and the relevant member(s) of the IEP team

who have specific knowledge of the facts identified in the request.

1. The resolution meeting shall include a representative of the district board of education

who has authority to make decisions on behalf of the district board of education.

i. The district board of education shall not include its attorney unless the parent

is accompanied by an attorney.

ii. An advocate shall not be considered an attorney for purposes of determining

whether a district board of education shall be entitled to bring its attorney to a

resolution meeting.

2. For a due process hearing, the resolution meeting shall be held within 15 days of

receiving the parents’ request. For an expedited due process hearing, the resolution

meeting shall be held within seven days of receiving the request.

3. The resolution meeting shall not be audio or video recorded by either party unless both the

district board of education and the parent agree to record the resolution meeting.

4. If a due process hearing request is not resolved to the satisfaction of the parents

within 30 days of the receipt of the petition, the Office shall transmit the case to the

Office of Administrative Law for a due process hearing.

5. If an expedited due process hearing request is not resolved to the satisfaction of the

parents within 15 days of receipt of the request, the Office shall transmit the case to

the Office of Administrative Law for an expedited due process hearing.

6. If an agreement is reached at the resolution meeting, the terms of the agreement shall

be incorporated into a written document and signed by the parties.

i. Either party may void the agreement, in writing, within three business days of

signing the agreement.

ii. If the agreement is not voided within the three business days, it is legally binding.

iii. If either party fails to implement the written agreement, it is enforceable in any

State court of competent jurisdiction or in the United States District Court.

iv. If a dispute arises over the voiding of a resolution meeting agreement, the

matter shall be transmitted to the Office of Administrative Law for a due

process hearing.

7. If the requirements of this subsection with respect to scheduling and conducting a

resolution meeting are not adhered to, issues concerning adherence to such

procedures shall be raised in a due process hearing, and shall not be raised in a

request for a complaint investigation pursuant to N.J.A.C. 6A:14-9.2.

8. In place of a resolution meeting, the parties may agree to participate in mediation

conducted by a mediator from the Office of Administrative Law in accordance with

N.J.A.C. 6A:14-2.6.

i. Parents shall indicate on their request for a due process hearing whether

mediation is also requested.

ii. If the district board of education agrees to mediation in lieu of a resolution

meeting, a representative of the district board of education shall contact the

Office to facilitate the scheduling of the mediation conference.

iii. If the parties fail to participate in mediation within 30 days of the date the

request for a due process hearing is submitted, the matter shall be transmitted

to the Office of Administrative Law for a due process hearing with a notation

that the parties declined a resolution meeting and requested mediation, but that

the mediation conference failed to occur.

9. The parties may agree, in writing, to waive the resolution meeting and proceed

directly to a due process hearing.

i. Parents may indicate on the request for a due process hearing that they desire

to waive the resolution meeting.

ii. If the parent and a representative of the district board of education with

decision-making authority agree in writing to waive the resolution meeting,

the parties shall notify the Office that they have agreed to waive the resolution

meeting.

iii. Upon receipt of a signed waiver, the matter will be transmitted to the Office of

Administrative Law for a due process hearing.

10. The parties shall notify the Office, in writing, of the result of the resolution meeting. If

the matter has not been resolved or withdrawn, it shall be transmitted to the Office of

Administrative Law after 30 days from the date the request was received.

11. When a district board of education files a request for a due process hearing, no resolution

meeting shall be held. The matter shall be mediated if the parties agree and, if necessary,

transmitted to the Office of Administrative Law for a due process hearing.

(i) After a petition requesting a due process hearing is submitted to the Office, the petition may

be amended only with the consent of the other party, or if an administrative law judge allows

the party to amend the petition.

1. If a petition is amended with the consent of a district board of education, the district

board of education shall be afforded the opportunity to hold a resolution meeting in

accordance with (h) above to resolve the issues raised in the amended petition. The

timeframes for holding and completing the resolution meeting shall begin on the date

the amended petition is filed with the Office.

2. If a petition is amended by order of an administrative law judge, the order shall be

issued no later than five days prior to the date the matter is heard, and no resolution

meeting is required to address the issues raised in the amended petition.

(j) A final decision shall be rendered by the administrative law judge not later than 45 calendar

days after the conclusion of the resolution period described in (h)2, 4, and 5 above unless

specific adjournments are granted by the administrative law judge in response to requests by

either party to the dispute.

1. The 15- or 30-day resolution period set forth in (h)2, 4, and 5 above shall end either at

the expiration of the applicable 15- or 30-day time period, or when both parties notify

the Office, in writing, that they have waived the resolution meeting and intend to

proceed directly to a due process hearing.

(k) The decision made by an administrative law judge in a due process hearing shall be made on

substantive grounds based on a determination of whether the child received a free,

appropriate public education (FAPE). In matters alleging a procedural violation, an

administrative law judge may decide that a child did not receive a FAPE only if the

procedural inadequacies:

1. Impeded the child’s right to a FAPE;

2. Significantly impeded the parents’ opportunity to participate in the decision-making

process regarding the provision of FAPE to the child; or

3. Caused a deprivation of educational benefits.

(l) The decision of the administrative law judge is final, binding on both parties, and to be

implemented without undue delay unless stayed in accordance with N.J.A.C. 1:6A.

1. The decision in a due process hearing shall be provided in an electronic form if the

parent requests that it be issued in an electronic form.

(m) If the parent disagrees with the determination that the student's behavior was not a

manifestation of the student's disability or with any decision regarding placement under 20

U.S.C. §1415(k) and its implementing regulations at 34 CFR §§ 300.1 et seq., the parent may

request an expedited hearing.

(n) To remove a student with a disability when district board of education personnel maintain

that it is dangerous for the student to be in the current placement and the parent and district

board of education cannot agree to an appropriate placement, the district board of education

shall request an expedited hearing. The administrative law judge may order a change in the

placement of the student with a disability to an appropriate interim alternative placement for

not more than 45 calendar days according to 20 U.S.C. § 1415(k) and its implementing

regulations at 34 CFR Part 300;

1. The procedure in 20 U.S.C. §1415(k)(3) may be repeated as necessary.

(o) An expedited hearing shall be requested according to the following:

1. The request for a due process hearing shall specify that an expedited hearing is

requested due to disciplinary action;

2. When a request for an expedited hearing is received, the Office shall acknowledge

receipt of the request, shall provide information to the parent regarding free and low-

cost legal services, shall provide mediation if requested by both parties in lieu of a

resolution meeting, and shall transmit the case to the Office of Administrative Law

according to the following:

i. A representative from the Office shall contact a representative of the Office of

Administrative Law who will provide a hearing date;

ii. The expedited hearing shall be conducted and completed within 20 school

days of receipt of the request by the Office;

iii. The resolution meeting or, if requested by both parties, mediation shall be

scheduled within seven days and completed within 15 days of receipt of the

request by the Office;

iv. If the mediation results in agreement, the conclusions of the parties shall be

incorporated into a written agreement prepared by the mediator at the

mediation conference and signed by each party. The matter shall be

considered settled. The agreement shall be binding according to N.J.A.C.

6A:14-2.6(d)11;

3. Upon receiving the acknowledgment of the request from the Office, the parties shall

complete the exchange of relevant records and information at least two business days

before the expedited hearing; and

4. The expedited hearing shall result in a written decision being provided to the parties

within 10 school days of the completion of the expedited due process hearing without

exceptions or extensions.

(p) In reviewing a decision with respect to a manifestation determination, the administrative law judge

shall determine whether the district board of education has demonstrated that the child's behavior

was not a manifestation of the student's disability consistent with the requirements of 20 U.S.C.

§1415(k) and its implementing regulations at 34 CFR §§ 300.1 et seq.

(q) In reviewing a decision under 20 U.S.C. §1415(k) and its implementing regulations at 34

CFR §§ 300.1 et seq. to place the student in an interim alternative educational setting, the

administrative law judge shall apply the standards in 20 U.S.C. §1415(k) and its

implementing regulations at 34 CFR §§ 300.1 et seq.

(r) Either party may apply, in writing, for a temporary order of emergent relief as a part of a

request for a due process hearing or an expedited hearing for disciplinary action, or at any

time after a due process or expedited hearing is requested pending a settlement or decision on

the matter. The request shall be supported by an affidavit or notarized statement specifying

the basis for the request for emergency relief. The applicant shall provide a copy of the

request to the other party. The request for emergent relief shall note that a copy was sent to

the other party.

1. Emergent relief shall be requested only for the following issues:

i. Issues involving a break in the delivery of services;

ii. Issues involving disciplinary action, including manifestation determinations

and determinations of interim alternate educational settings;

iii. Issues concerning placement pending the outcome of due process

proceedings; and

iv. Issues involving graduation or participation in graduation ceremonies.

(s) Prior to transmittal of a request for a due process hearing or an expedited hearing to the

Office of Administrative Law, an application for emergent relief shall be made to the

Director of the Office. After transmittal of a request for a due process hearing or an expedited

hearing, any application for emergent relief shall be made directly to the Office of

Administrative Law.

1. Emergent relief may be requested according to N.J.A.C. 1:6A-12.1. Emergent relief

may be granted if the administrative law judge determines from the proofs that:

i. The petitioner will suffer irreparable harm if the requested relief is not granted;

ii. The legal right underlying the petitioner's claim is settled;

iii. The petitioner has a likelihood of prevailing on the merits of the underlying

claim; and

iv. When the equities and interests of the parties are balanced, the petitioner will

suffer greater harm than the respondent will suffer if the requested relief is not

granted.

(t) If either party fails to comply with any provision of a final decision in a due process hearing,

either party may seek enforcement of the decision in a court of appropriate jurisdiction. If

the district board of education responsible for implementing the IEP fails to implement a

hearing decision of the Office of Administrative Law with respect to the student’s program or

services, a request for enforcement may be made by the parent or the parent’s attorney on

behalf of the student. The request shall be made in writing to the Director of the Office,

Department of Education no later than the 90th calendar day from the date that the action

directed in the hearing decision that is the subject of the enforcement request was required to

have occurred. The request shall include a copy of the decision issued by the Office of

Administrative Law. If there are multiple requirements or directives in the hearing decision,

the 90-day time frame to seek enforcement shall be measured separately for each requirement

or directive, based on the date by which each is required in the hearing decision to occur.

Upon receipt of this request, the district board of education shall have an opportunity to

respond to the request for enforcement and, if appropriate, seek to resolve the request with

the parent. The Office shall determine the implementation of the decision. If it is determined

that the district board of education has failed to implement the decision or part of the

decision, the Office shall order the district board of education to implement the decision or

part of the decision, as appropriate. If any part of the decision is modified by subsequent

agreement of the parties, enforcement may not be sought with respect to that part of the

decision.

(u) Pending the outcome of a due process hearing, including an expedited due process hearing,

or any administrative or judicial proceeding, no change shall be made to the student's

classification, program, or placement unless both parties agree, or emergency relief as part of

a request for a due process hearing is granted by the Office of Administrative Law according

to (m) above or as provided at 20 U.S.C. § 1415(k)4. (See N.J.A.C. 6A:14 Appendix A.)

1. If the decision of the administrative law judge agrees with the student's parents that a

change of placement is appropriate, the placement shall be treated as an agreement

between the district board of education and the parents for the remainder of any court

proceedings.

(v) Any party may appeal the decision of an administrative law judge in a due process hearing.

1. Any appeal of a final decision of an administrative law judge in a due process hearing

shall be filed within 90 days of the date of issuance of the final decision. Interim

decisions of an administrative law judge in a due process hearing, including

determinations on requests for emergency relief, or determinations with respect to

procedural issues, including discovery or scheduling, shall not be subject to the 90-

day limitation period for filing appeals and, instead, shall be subject to applicable

requirements pertaining to filing interlocutory appeals to courts of appropriate

jurisdiction.

(w) Requests for a due process hearing with respect to issues concerning Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794a, shall be processed in accordance with this

section, except as follows:

1. There shall be no resolution period or opportunity for a resolution meeting pursuant to (h)

above with respect to requests for a due process hearing and issues concerning Section

504 of the Rehabilitation Act of 1973, regardless of whether the request for a due process

hearing is filed by a parent or a district board of education. However, the parties may

agree to participate in a mediation conference and, if so, mediation shall be scheduled in

accordance with N.J.A.C. 6A:14-2.6; and

2. The provisions of (d), (e), and (f) above are not applicable with respect to requests for

a due process hearing filed concerning issues involving Section 504 of the

Rehabilitation Act of 1973.

6A:14-2.8 Discipline/suspension/expulsions

(a) For disciplinary reasons, district board of education officials may order the removal of a

student with a disability from his or her current educational placement to an interim

alternative educational setting, another setting, or a suspension for up to 10 consecutive or

cumulative school days in a school year. Such suspensions are subject to the same district

board of education procedures as the procedures for nondisabled students. However, at the

time of removal, the principal shall forward written notification and a description of the

reasons for such action to the case manager and the student’s parent(s).

1. Notwithstanding (a) above, preschool students with disabilities shall not be

suspended, long-term or short-term, and shall not be expelled.

2. The district board of education is not required by 20 U.S.C. §§ 1400 et seq., or this

chapter to provide, during periods of removal, services to a student with a disability

who has been removed from his or her current placement for 10 school days or less in

a school year, provided that if services are provided to general education students for

removals of 10 or fewer days duration, students with disabilities shall be provided

services in the same manner as students without disabilities during such time periods

for removals of 10 or fewer days.

(b) District board of education personnel may consider, on a case-by-case basis, any unique

circumstances when determining whether or not to impose a disciplinary sanction or order a

change of placement for a student with a disability who violates a district board of education

code of conduct.

disciplinary reasons constitutes a change of placement if:

1. The removal is for more than 10 consecutive school days; or

2. The student is subjected to a series of short-term removals that constitute a pattern

because they cumulate to more than 10 school days in a school year and because of

factors such as the length of each removal, the total amount of time the student is

removed, and the proximity of the removals to one another.

i. District board of education officials, in consultation with the student's case

manager, shall determine whether a series of short-term removals constitutes a

pattern that creates a change of placement.

(d) Disciplinary action initiated by a district board of education that involves removal to an

interim alternative educational setting, suspension for more than 10 school days in a school

year, or expulsion of a student with a disability shall be in accordance with 20 U.S.C. §

1415(k). (See N.J.A.C. 6A:14 Appendix A.) However, removal to an interim alternative

educational setting of a student with a disability in accordance with 20 U.S.C. § 1415(k) shall

be for a period of no more than 45 calendar days.

(e) In the case of a student with a disability who has been removed from his or her current

placement for more than 10 cumulative or consecutive school days in the school year, the

district board of education shall provide services to the extent necessary to enable the student

to progress appropriately in the general education curriculum and advance appropriately

toward achieving the goals set out in the student's IEP.

1. When it is determined that a series of short-term removals is not a change of placement,

district board of education officials, in consultation with the student's special education

teacher and case manager, shall determine the extent to which services are necessary to

enable the student to progress appropriately in the general curriculum and advance

appropriately toward achieving the goals set out in the student's IEP.

2. When a removal constitutes a change of placement, and it is determined that the

behavior is not a manifestation of the student's disability, the student's IEP team shall

determine the extent to which services are necessary to enable the student to progress

appropriately in the general curriculum and advance appropriately toward achieving

the goals set out in the student's IEP.

(f) In the case of a removal for drug or weapons offenses, or because the student caused a

serious bodily injury in accordance with 20 U.S.C. § 1415(k) and its implementing

regulations at 34 CFR Part 300, or a removal by an administrative law judge for

dangerousness consistent with 20 U.S.C. § 1415(k) and its implementing regulations at 34

CFR Part 300, the district board of education shall provide services to the student with a

disability consistent with 20 U.S.C. § 1415(k) and its implementing regulations at 34 CFR

Part 300, incorporated herein by reference. However, removal to an interim alternative

educational setting of a student with a disability in accordance with 20 U.S.C. § 1415(k) shall

be for a period of no more than 45 calendar days.

6A:14-2.9 Student records

(a) All student records shall be maintained according to N.J.A.C. 6A:32-7.

(b) The parent, adult student, or designated representative shall be permitted to inspect and review the

contents of the student's records maintained by the district board of education pursuant to N.J.A.C.

6A:32-7 without unnecessary delay and before any meeting regarding the IEP.

obtained according to N.J.A.C. 6A:14-1.3 (definition of consent) and 2.3(a) and (b).

6A:14-2.10 Reimbursement for unilateral placement by parents

(a) Except as provided at N.J.A.C. 6A:14-6.1(a), the district board of education shall not be required

to pay for the cost of education, including special education and related services, of a student

with a disability if the district board of education made available a free, appropriate public

education and the parents elected to enroll the student in a nonpublic school, an early childhood

program, or an approved private school for students with disabilities.

(b) If the parents of a student with a disability who previously received special education and

related services from the district of residence enroll the student in a nonpublic school, an

early childhood program, or approved private school for students with disabilities without the

consent of, or referral by, the district board of education, an administrative law judge may

require the district board of education to reimburse the parents for the cost of enrollment if

the administrative law judge finds that the district board of education had not made a free,

appropriate public education available to the student in a timely manner prior to enrollment

and that the private placement is appropriate.

1. A parental placement may be found to be appropriate by a court of competent

jurisdiction or an administrative law judge pursuant to N.J.A.C. 6A:14-6.5 for

placements in unapproved schools, even if the parental placement does not meet the

standards that apply to the education provided by the district board of education.

to enroll their child in a nonpublic school at public expense. The cost of reimbursement

described at (b) above may be reduced or denied:

1. If, at the most recent IEP meeting that the parents attended prior to the removal of the

student from the public school, the parents did not inform the IEP team that they were

rejecting the IEP proposed by the district board of education;

2. If, at least 10 business days (including any holidays that occur on a business day)

prior to the removal of the student from the public school, the parents did not give

written notice to the district board of education of their concerns or intent to enroll

their child in a nonpublic school;

3. If, prior to the parents' removal of the student from the public school, the district

board of education proposed a reevaluation of the student and provided notice

pursuant to N.J.A.C. 6A:14-2.3(g) and (h), but the parents did not make the student

available for the reevaluation; or

4. Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(d) The cost of the reimbursement for enrollment in a nonpublic school shall not be reduced or

denied if the parents failed to provide the required notice described in (c)1 and 2 above if the

conditions in (d)3 and 4 below are met, and, at the discretion of a court or an administrative law

judge, may not be reduced if the conditions in (d)1 and 2 below are found to exist:

1. The parent cannot read and/or write in English;

2. Compliance with the notice requirement in (c)1 and 2 above would likely result in

physical or serious emotional harm to the student;

3. The district board of education prevented the parent from providing the notice

specified in (c)1 and 2 above; or

4. The parent had not received written notice according to N.J.A.C. 6A:14-2.3(e) and (f)

of the notice requirement that is specified in (c)1 and 2 above.

Subchapter 3. Services

6A:14-3.1 General requirements

(a) Child study team members, specialists in the area of disabilities, school personnel, and

parents as required by this subchapter shall be responsible for identification, evaluation,

determination of eligibility, development and review of the IEP, and placement.

(b) Child study team members shall include a school psychologist, a learning disabilities teacher-

consultant, and a school social worker. All child study team members shall be employees of

a district board of education, shall have an identifiable, apportioned time commitment to the

school district, and shall be available to provide all needed services during the hours students

are in attendance.

1. Each member of the child study team shall perform only those functions that are

within the scope of their professional license (where applicable) and certification

issued by the Department of Education.

members; speech-language specialists; occupational therapists; physical therapists;

audiologists; school nurses; advance practice nurses; and physicians who are appropriately

certified and/or licensed to carry out activities under this chapter. Where an educational

certificate and a license are required to carry out activities under this chapter, the professional

shall be appropriately certified and licensed.

(d) Child study team members and, to the extent appropriate, specialists in the area of disability:

1. Shall participate in the evaluation of students who may need special education

programs and services according to N.J.A.C. 6A:14-3.3 and 3.4;

2. Shall participate in the determination of eligibility of students for special education

programs and services according to N.J.A.C. 6A:14-3.5;

3. May provide services to educational staff regarding techniques, materials, and

programs. Services include, but are not limited to, the following:

i. Consultation with school staff and parents;

ii. Training of school staff; and

iii. The design, implementation, and evaluation of techniques addressing

academic and behavioral difficulties;

4. May deliver appropriate related services to students with disabilities;

5. May provide preventive and support services to nondisabled students; and

6. May participate on intervention and referral services teams pursuant to N.J.A.C. 6A:16-8.

6A:14-3.2 Case manager

(a) A case manager shall be assigned to a student when it is determined that an initial evaluation

shall be conducted. A child study team member, or a speech-language specialist when acting

as a member of the child study team, shall be designated and serve as the case manager for

each student with a disability.

(b) The case manager shall coordinate the development, monitoring, and evaluation of the

effectiveness of the IEP. The case manager shall facilitate communication between home and

school and shall coordinate the annual review and reevaluation process.

1. Be knowledgeable about the student's educational needs and program;

2. Be knowledgeable about special education procedures and procedural safeguards;

3. Have an apportioned amount of time for case management responsibilities; and

4. Be responsible for transition planning.

6A:14-3.3 Location, referral, and identification

(a) Each district board of education shall develop written procedures for students age three

through 21, including students attending nonpublic schools located within the school district

regardless of where they reside, who reside within the school district with respect to the

location, and referral of students who may have a disability due to physical, sensory,

emotional, communication, cognitive, or social difficulties.

1. The requirements of this section apply to highly mobile students with disabilities, such as

students with disabilities who are migrant and/or homeless students, and to students who

may have a disability even though they are advancing from grade to grade.

2. The activities undertaken to locate nonpublic school students with disabilities shall be

comparable to activities undertaken to locate public school students with disabilities. In

addition, each district board of education shall consult with appropriate representatives of

nonpublic school students on how to carry out these activities.

i. For preschool-age students enrolled in early childhood programs, the child-

find obligations, including evaluation for eligibility for special education and

related services, shall be the responsibility of the school district of residence

of the student’s parent.

ii. For nonpublic elementary or secondary school students, the child-find

obligations shall be the responsibility of the school district of attendance in

accordance with N.J.A.C. 6A:14-6.1.

3. The procedures shall include:

i. Utilizing strategies identified through the intervention and referral services

according to N.J.A.C. 6A:16-8, as well as other general education strategies;

ii. Referral by the school district’s instructional, administrative, and other

professional staff, parents, and State agencies, including the Department of

Education and agencies concerned with the welfare of students.

iii. Evaluation to determine eligibility for special education and related services; and/or

iv. Other educational action, as appropriate.

(b) Interventions in the general education setting shall be provided to students exhibiting

academic difficulties and shall be utilized, as appropriate, prior to referring a student for an

evaluation of eligibility for special education and related services.

1. Within former Abbott school districts, the system of assessment and interventions

within general education programs according to N.J.A.C. 6A:13 shall be implemented

for all students who have reading as their primary area of difficulty.

data, setting forth the type of interventions utilized, the frequency and duration of each

intervention, and the effectiveness of each intervention.

1. When it is determined, through analysis of relevant documentation and data concerning

each intervention utilized, that interventions in the general education program have not

adequately addressed the educational difficulties and it is believed that the student may

have a disability, the student shall be referred for evaluation to determine eligibility for

special education programs and services under this chapter.

2. A determination whether or not to conduct an evaluation shall be made in accordance

with (e) below.

(d) A direct referral to the child study team may be made, pursuant to (a)3ii above, when it can

be documented that the nature of the student's educational problem(s) is such that evaluation

to determine eligibility for special education services under this chapter is warranted without

delay.

1. The parent may make a written request for an evaluation to determine eligibility for

services under this chapter. Such a request shall be considered a referral and shall be

forwarded without delay to the child study team for consideration.

(e) When a preschool age or school age student is referred for an initial evaluation to determine

eligibility for special education programs and services under this chapter, a meeting of the

child study team, the parent, and the regular education teacher of the student who is

knowledgeable about the student's educational performance or, if there is no teacher of the

student, a teacher who is knowledgeable about the school district's programs, shall be

convened within 20 calendar days (excluding school holidays, but not summer vacation) of

receipt of the written request. This group shall determine whether an evaluation is warranted

and, if warranted, shall determine the nature and scope of the evaluation pursuant to N.J.A.C.

6A:14-3.4(a). The team may also determine that an evaluation is not warranted and, if so,

determine other appropriate action. The parent shall be provided written notice of the

determination(s), including a request for consent to evaluate, if an evaluation will be

conducted pursuant to N.J.A.C. 6A:14-2.3.

1. To facilitate the transition from early intervention to preschool, a child study team

member of the district board of education shall participate in the preschool transition

planning conference arranged by the designated service coordinator from the Early

Intervention System. The child study team member representing the district board of

education at the transition planning conference shall:

i. Review the Part C Early Intervention System Individualized Family Service Plan;

ii. Provide the parents written district board of education registration requirements;

iii. Provide the parents written information on available school district programs

for preschool students, including options available for placement in general

education classrooms; and

iv. Provide to the parent the form to request that the district board of education

invite the Part C service coordinator from the Early Intervention System to the

initial IEP meeting for the child after a determination of eligibility.

2. Preschoolers with disabilities shall have their IEPs implemented no later than age

three. To assure that preschoolers with disabilities have their initial IEPs implemented

no later than age three, a written request for initial evaluation shall be forwarded by

Early Intervention Service providers to the district board of education at least 120

days prior to the preschooler attaining age three.

i. For a child receiving Early Intervention System services, the form to request

that the district board of education invite the Part C service coordinator from

the Early Intervention System to the initial IEP meeting for the child after a

determination of eligibility shall be submitted to the district board of

education with the request for initial evaluation.

3. When a preschool age child is referred for an initial evaluation, a speech-language

specialist shall participate as an additional member of the child study team in the

meeting to determine whether to evaluate and the nature and scope of the evaluation.

i. If it is determined that a speech-language assessment will be conducted, it may be

utilized as one of the two required assessments in N.J.A.C. 6A:14-3.4(f).

4. When the suspected disability for students ages five to 21 includes a language

disorder, the child study team, the parent, a speech-language specialist, and the

general education teacher of the student who has knowledge of the student's

educational performance or, if there is no teacher of the student, a teacher who is

knowledgeable about the district's programs, shall participate in the meeting to decide

whether to evaluate, and the nature and scope of the evaluation.

5. When the suspected disability for students ages five to 21 is a disorder of voice,

articulation, and/or fluency only, the decision to evaluate and the determination of the

nature and scope of the evaluation shall be in accordance with (e) above, except that

the meeting shall include the speech-language specialist, the parent, and the general

education teacher of the student who has knowledge of the student's educational

performance or, if there is no teacher of the student, a teacher who is knowledgeable

about the district's programs.

(f) When it is determined that an evaluation for eligibility for services under this chapter is

warranted, the student shall be considered identified as potentially a student with a disability.

If the student is removed for disciplinary action, limitations on the amount of time the student

is removed and the requirement to provide services shall be consistent with the procedures at

N.J.A.C. 6A:14-2.8. Additionally, protections for children not yet eligible for special

education and related services shall apply, in accordance with 20 U.S.C. § 1415(k)(5). (See

N.J.A.C. 6A:14 Appendix A.)

(g) Audiometric screening pursuant to N.J.A.C. 6A:16-2.3(k)3 shall be conducted for every

student referred to the child study team for a special education evaluation.

(h) Vision screening shall be conducted by the school nurse for every student referred to the

child study team for a special education evaluation.

(i) The Department of Education incorporates by reference the provisions of the Individuals

with Disabilities Education Act of 2004 at 20 U.S.C. § 1412(c)3 and its implementing

regulations at 34 CFR Part 300 regarding child find. (See N.J.A.C. 6A:14 Appendix E.)

6A:14-3.4 Evaluation

(a) The child study team, the parent, and the general education teacher of the student who has

knowledge of the student's educational performance or, if there is no teacher of the student, a

teacher who is knowledgeable about the school district's programs shall:

1. Review existing evaluation data on the student including evaluations and information

provided by the parents, current classroom-based assessments and observations, and

the observations of teachers and related services providers, and consider the need for

any health appraisal or specialized medical evaluation;

2. On the basis of the review at (a)1 above, identify what additional data, if any, are

needed to determine:

i. Whether the student has a disability under this chapter;

ii. The present levels of academic and functional achievement and related

developmental needs, and educational needs of the student; and

iii. Whether the student needs special education and related services; and

3. Determine which child study team members and/or specialists shall conduct each

assessment that is part of the evaluation.

(b) Prior to conducting any assessment as part of an initial evaluation, the district board of

education shall request and obtain consent to evaluate according to N.J.A.C. 6A:14-3.3(e).

education may file for a due process hearing pursuant to N.J.A.C. 6A:14-2.7 to compel

consent to evaluate.

(d) The screening of a student by a teacher or specialist to determine appropriate instructional

strategies for curriculum implementation shall not be considered to be an evaluation for

eligibility for special education and related services.

(e) After parental consent for initial evaluation of a preschool age or school age student has been

received, the evaluation, determination of eligibility for services under this chapter, and, if

eligible, development and implementation of the student’s IEP shall be completed within 90

calendar days.

1. If the parent repeatedly fails or refuses to produce the child for the evaluation, the

time period above shall not apply.

2. If a child enrolls in the school of a district board of education after an initial

evaluation was undertaken by another district board of education, but before the

initial evaluation was completed, and the new district board of education is making

progress to ensure a prompt completion of the evaluation, and the district board of

education and parent agree to a specific modified timeframe for completing the

evaluation, the agreed-upon timeframe for completing the evaluation shall be applied.

3. If initial evaluation of a preschool-age child is warranted, the district board of education

shall take steps to ensure that consent to evaluate is obtained without delay.

(f) An initial evaluation shall consist of a multi-disciplinary assessment in all areas of suspected

disability. An initial evaluation shall include at least two assessments and shall be conducted

by at least two members of the child study team in the areas in which the child study team

members have appropriate training or are qualified through their professional licensure or

educational certification and other specialists in the area of disability as required or as

determined necessary. Each evaluation of the student shall:

1. Be conducted in the language or form most likely to yield accurate information on

what the child knows and can do academically, developmentally, and functionally,

unless it is not feasible to do so;

2. Apply standards of validity, reliability, and administration for each assessment by

trained personnel in accordance with the protocols and instructions of the producer of

the assessment;

3. Include, where appropriate or required, the use of a standardized test(s) that shall be:

i. Individually administered;

ii. Valid and reliable;

iii. Normed on a representative population; and

iv. Scored as either standard score with standard deviation or norm referenced

scores with a cutoff score;

4. Include a functional assessment of academic performance and, where appropriate, a

functional behavioral assessment, an assessment of the language needs of a child who

is a multilingual learner, assessment of the student’s communication needs, and

assessment of the need for assistive technology devices and services. Each of the

following components shall be completed by at least one evaluator:

i. A minimum of one structured observation by one evaluator in other than a

testing session;

(1) In the case of a student who is suspected of having a specific learning

disability, one evaluator shall observe the student's academic

performance in the general education classroom;

(2) In the case of a preschool-age student, a child study team member in

an environment appropriate for a child of that age;

ii. An interview with the student's parent;

iii. An interview with the teacher(s) referring the potentially disabled student;

iv. A review of the student's developmental/educational history, including records

and interviews;

v. A review of interventions documented by the classroom teacher(s) and others

who work with the student; and

vi. One or more informal measures, which may include, but not be limited to: surveys

and inventories; analysis of work; trial teaching; self-report; criterion referenced

tests; curriculum-based assessment; and informal rating scales; and

5. Beginning at age 14, or younger if appropriate, include assessment(s) to determine

appropriate postsecondary outcomes.

(g) When the suspected disability is a disorder of articulation, voice, or fluency pursuant to

N.J.A.C. 6A:14-3.6(b), the speech-language specialist shall:

1. Meet with the parent and the student's general education teacher who is

knowledgeable about the student's educational performance or, if there is no general

education teacher, a general education teacher who is knowledgeable about the school

district's programs to review existing data on the student, including evaluations and

information provided by the parents, current classroom-based assessments and

observations, and the observations of teachers and related services providers;

2. Obtain consent to conduct the evaluation pursuant to N.J.A.C. 6A:14-2.3(a)1;

3. Conduct an assessment pursuant to (f)1 through 4 above. The assessment shall

include written information from the classroom teacher of the educational impact

created by the speech problem. The assessment shall fulfill the requirement for multi-

disciplinary evaluation as required in (f) above; and

4. Prepare a written report of the results according to (h) below.

(h) A written report of the results of each assessment shall be prepared. At the discretion of the

district board of education, the written report may be prepared collaboratively by the

evaluators or each evaluator may prepare an individually written report of the results of his or

her assessments. Each written report shall be dated and signed by the individual(s) who

conducted the assessment and shall include:

1. An appraisal of the student's current functioning and an analysis of instructional

implication(s) appropriate to the professional discipline of the evaluator;

2. A statement regarding relevant behavior of the student, either reported or observed, and

the relationship of that behavior to the student's academic functioning;

3. If an assessment is not conducted under standard conditions, the extent to which it

varied from standard conditions;

4. When a student is suspected of having a specific learning disability, the

documentation of the determination of eligibility shall include a statement of:

i. Whether the student has a specific learning disability;

ii. The basis for making the determination;

iii. The relevant behavior noted during the observation;

iv. The relationship of the behavior to the student's academic performance;

v. Educationally relevant medical findings, if any;

vi. If a severe discrepancy methodology is utilized, whether there is a severe

discrepancy between achievement and ability that is not correctable without

special education and related services;

vii. The determination concerning the effects of environmental, cultural or

economic disadvantage;

viii. Whether the student achieves commensurate with his or her age;

ix. If a response to scientifically based interventions methodology is utilized, the

instructional strategies utilized and the student-centered data collected with

respect to the student; and

x. Whether there are strengths and/or weaknesses in performance or achievement

relative to intellectual development in one of the following areas that require

special education and related services;

(1) Oral expression;

(2) Listening comprehension;

(3) Written expression;

(4) Basic reading skill;

(5) Reading fluency skills;

(6) Reading comprehension;

(7) Mathematics calculation; and

(8) Mathematics problem solving;

5. Additionally, each child study team member shall certify, in writing, whether his or

her report is in accordance with the conclusion of the student’s eligibility. If his or her

report does not reflect the conclusion of eligibility, the child study team member must

submit a separate statement presenting his or her conclusions; and

6. When a response to scientifically based interventions methodology is utilized to make

the determination of whether the student has a specific learning disability, the district

board of education shall:

i. Ensure that such methodology includes scientifically based instruction by

highly qualified instructors, and that multiple assessments of student progress

are included in the evaluation of the student;

ii. Not be required to include more than the assessment conducted pursuant to the

district board of education’s response to scientifically based intervention

methodology in the evaluation of a student; and

iii. If the parent consents in writing, extend, as necessary, the time to complete an

evaluation pursuant to (c) above.

(i) When conducting an initial evaluation or reevaluation, the reports and assessments of child

study team members or related services providers from other public school districts,

Department of Education approved clinics or agencies, educational services commissions or

jointure commissions, or professionals in private practice may be submitted by the parents to

the child study team for consideration. Each report and assessment shall be reviewed and

considered by the child study team member or related services provider with relevant

knowledge or expertise. A report, or component thereof, may be utilized as a required

assessment, if the assessment has been conducted within one year of the evaluation and the

child study team determines the report and assessment meet the requirements of (h) above.

(j) Upon receipt of a written referral to the child study team, the school nurse shall review and

summarize available health and medical information regarding the student and shall transmit

the summary to the child study team for the meeting according to (a) above to consider the

need for a health appraisal or specialized medical evaluation.

6A:14-3.5 Determination of eligibility for special education and related services

(a) When an initial evaluation is completed for a student age three through 21, a meeting

pursuant to N.J.A.C. 6A:14-2.3(k)1 shall be convened to determine whether the student is

eligible for special education and related services. A copy of the evaluation report(s) and

documentation and information that will be used for a determination of eligibility shall be

given to the parent at least 10 calendar days prior to the meeting. If eligible, the student shall

be assigned the classification "eligible for special education and related services." Eligibility

shall be determined collaboratively by the participants described at N.J.A.C. 6A:14-2.3(k)1.

(b) In making a determination of eligibility for special education and related services, a student

shall not be determined eligible if the determinant factor is due to a lack of instruction in

reading, including the essential components of reading instruction, or mathematics, or if the

student is a multilingual learner (ML).

related services" under this chapter when it is determined that the student has one or more of

the disabilities defined in (c)1 through 14 below, the disability adversely affects the student's

educational performance, and the student is in need of special education and related services.

Classification shall be based on all assessments conducted, including assessment by child

study team members and assessment by other specialists as specified below.

1. “Auditory impairment” corresponds to "auditorily handicapped" and further

corresponds to the Federal eligibility categories of deafness or hearing impairment.

“Auditory impairment” means an inability to hear within normal limits due to

physical impairment or dysfunction of auditory mechanisms characterized by (c)1i or

ii below. An audiological evaluation by a specialist qualified in the field of audiology

and a speech and language evaluation by a certified speech-language specialist are

required.

i. "Deafness" – The auditory impairment is so severe that the student is impaired

in processing linguistic information through hearing, with or without

amplification, and the student's educational performance is adversely affected.

ii. "Hearing impairment" – An impairment in hearing, whether permanent or

fluctuating, that adversely affects the student's educational performance.

2. “Autism” means a pervasive developmental disability that significantly impacts

verbal and nonverbal communication and social interaction that adversely affects a

student's educational performance. Onset is generally evident before age three. Other

characteristics often associated with autism are engagement in repetitive activities and

stereotyped movements, resistance to environmental change or change in daily

routine, unusual responses to sensory experiences, and lack of responsiveness to

others. The term does not apply if the student's adverse educational performance is

due to an emotional regulation impairment as defined in (c)5 below. A child who

manifests the characteristics of autism after age three may be classified as autistic if

the criteria in this paragraph are met. An assessment by a certified speech-language

specialist and an assessment by a physician trained in neurodevelopmental assessment

are required.

3. “Intellectual disability” means a disability that is characterized by significantly below

average general cognitive functioning existing concurrently with deficits in adaptive

behavior; manifested during the developmental period that adversely affects a

student's educational performance and is characterized by one of the following:

i. "Mild intellectual disability" means a level of cognitive development and

adaptive behavior in home, school, and community settings that are mildly

below age expectations with respect to all of the following:

(1) The quality and rate of learning;

(2) The use of symbols for the interpretation of information and the

solution of problems; and

(3) Performance on an individually administered test of intelligence that

falls within a range of two to three standard deviations below the mean.

ii. "Moderate intellectual disability" means a level of cognitive development and

adaptive behavior that is moderately below age expectations with respect to

the following:

(1) The ability to use symbols in the solution of problems of low complexity;

(2) The ability to function socially without direct and close supervision in

home, school, and community settings; and

(3) Performance on an individually administered test of intelligence that

falls three standard deviations or more below the mean.

iii. "Severe intellectual disability" means a level of functioning severely below

age expectations whereby, on a consistent basis, the student is incapable of

giving evidence of understanding and responding in a positive manner to

simple directions expressed in the child's primary mode of communication

and cannot in some manner express basic wants and needs.

4. “Communication impairment” means a language disorder in the areas of morphology,

syntax, semantics, and/or pragmatics/discourse that adversely affects a student's

educational performance and is not due primarily to an auditory impairment. The

problem shall be demonstrated through functional assessment of language in other than

a testing situation and performance below 1.5 standard deviations, or the 10th

percentile on at least two standardized language tests, where such tests are appropriate,

one of which shall be a comprehensive test of both receptive and expressive language.

When the area of suspected disability is language, assessment by a certified speech-

language specialist and assessment to establish the educational impact are required. The

speech-language specialist shall be considered a child study team member.

i. When it is determined that the student meets the eligibility criteria according to the

definition in (c)4 above, but requires instruction by a speech-language specialist

only, the student shall be classified as eligible for speech-language services.

ii. When the area of suspected disability is a disorder of articulation, voice, or

fluency, the student shall be evaluated pursuant to N.J.A.C. 6A:14-3.4(g) and,

if eligible, classified as eligible for speech-language services pursuant to

N.J.A.C. 6A:14-3.6(a).

5. "Emotional regulation impairment" means a condition exhibiting one or more of the

following characteristics over a long period of time and to a marked degree that

adversely affects a student's educational performance due to:

i. An inability to learn that cannot be explained by intellectual, sensory, or

health factors;

ii. An inability to build or maintain satisfactory interpersonal relationships with

peers and teachers;

iii. Inappropriate types of behaviors or feelings under normal circumstances;

iv. A general pervasive mood of unhappiness or depression; or

v. A tendency to develop physical symptoms or fears associated with personal or

school problems.

6. “Multiple disabilities” means the presence of two or more disabling conditions, the

combination of which causes such severe educational needs that they cannot be

accommodated in a program designed solely to address one of the impairments.

Multiple disabilities include intellectual disability-blindness and intellectual

disability-orthopedic impairment. The existence of two disabling conditions alone

shall not serve as a basis for a classification of multiple disabilities. Eligibility for

speech-language services as defined in this section shall not be one of the disabling

conditions for classification based on the definition of "multiple disabilities."

Multiple disabilities does not include deaf-blindness.

7. "Deaf/blindness" means concomitant hearing and visual impairments, the

combination of which causes such severe communication and other developmental

and educational problems that they cannot be accommodated in special education

programs solely for students with deafness or students with blindness.

8. “Orthopedic impairment” means a disability characterized by a severe orthopedic

impairment that adversely affects a student's educational performance. The term

includes malformation, malfunction, or loss of bones, muscle, or tissue. A medical

assessment documenting the orthopedic condition is required.

9. "Other health impairment" means a disability characterized by having limited

strength, vitality, or alertness, including a heightened alertness with respect to the

educational environment, due to chronic or acute health problems, such as attention

deficit hyperactivity disorder, a heart condition, tuberculosis, rheumatic fever,

nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia,

diabetes, or any other medical condition, such as Tourette Syndrome, that adversely

affects a student's educational performance. A medical assessment documenting the

health problem is required.

10. "Preschool child with a disability" means a child between the ages of three and five

who either:

i. Is experiencing developmental delay, as measured by appropriate diagnostic

instruments and procedures, in one or more of the areas in (c)10i(1) through (5)

below, and requires special education and related services. As measured by a

standardized assessment or criterion-referenced measure to determine

eligibility, a developmental delay shall mean a 33 percent delay in one

developmental area, or a 25 percent delay in two or more developmental areas.

(1) Physical, including gross motor, fine motor, and sensory (vision and

hearing);

(2) Intellectual;

(3) Communication;

(4) Social and emotional; and

(5) Adaptive; or

ii. Has an identified disabling condition, including vision or hearing, that

adversely affects learning or development and who requires special education

and related services.

11. "Social maladjustment" means a consistent inability to conform to the standards for

behavior established by the school. Such behavior is seriously disruptive to the

education of the student or other students and is not due to an emotional regulation

impairment as defined in (c)5 above.

12. "Specific learning disability" means a disorder in one or more of the basic

psychological processes involved in understanding or using language, spoken or

written, that may manifest itself in an imperfect ability to listen, think, speak, read,

write, spell, or to do mathematical calculations, including conditions, such as

perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and

developmental aphasia.

i. A specific learning disability can be determined when a severe discrepancy is

found between the student's current achievement and intellectual ability in one

or more of the following areas:

(1) Basic reading skills;

(2) Reading comprehension;

(3) Oral expression;

(4) Listening comprehension;

(5) Mathematical calculation;

(6) Mathematical problem solving;

(7) Written expression; and

(8) Reading fluency.

ii. A specific learning disability may also be determined by utilizing a response

to scientifically based interventions methodology as described in N.J.A.C.

6A:14-3.4(h)6.

iii. The term “severe discrepancy” does not apply to students who have learning

problems that are primarily the result of visual, hearing, or motor disabilities,

general intellectual deficits, emotional regulation impairment, or

environmental, cultural, or economic disadvantage.

iv. If the district board of education utilizes the severe discrepancy methodology,

the district board of education shall adopt procedures that utilize a statistical

formula and criteria for determining severe discrepancy. Evaluation shall

include assessment of current academic achievement and intellectual ability.

13. "Traumatic brain injury" means an acquired injury to the brain caused by an external

physical force or insult to the brain, resulting in total or partial functional disability or

psychosocial impairment, or both. The term applies to open or closed head injuries

resulting in impairments in one or more areas, such as cognition; language; memory;

attention; reasoning; abstract thinking; judgment; problem-solving; sensory,

perceptual, and motor abilities; psychosocial behavior; physical functions;

information processing; and speech.

14. “Visual impairment” means an impairment in vision that, even with correction,

adversely affects a student's educational performance. The term includes both partial

sight and blindness. An assessment by a specialist qualified to determine visual

disability is required. Students with visual impairments shall be reported to the New

Jersey Commission for the Blind and Visually Impaired.

6A:14-3.6 Determination of eligibility for speech-language services

(a) "Eligible for speech-language services" means a speech and/or language disorder as follows:

1. A speech disorder in articulation, phonology, fluency, voice, or any combination,

unrelated to dialect, cultural differences, or the influence of a foreign language, that

adversely affects a student's educational performance; and/or

2. A language disorder that meets the criteria at N.J.A.C. 6A:14-3.5(c)4 and the student

requires speech-language services only.

(b) The evaluation for a speech disorder shall be conducted pursuant to N.J.A.C. 6A:14-3.4(g).

Documentation of the educational impact of the speech problem shall be provided by the

student's teacher. The speech disorder must meet the criteria at (b)1, 2, and/or 3 below and

require instruction by a speech-language specialist:

1. Articulation/phonology: On a standardized articulation or phonology assessment, the

student exhibits one or more sound production error patterns beyond the age at which

90 percent of the population has achieved mastery according to current

developmental norms and misarticulates sounds consistently in a speech sample.

2. Fluency: The student demonstrates at least a mild rating, or its equivalent, on a formal

fluency rating scale and, in a speech sample, the student exhibits disfluency in five

percent or more of the words spoken.

3. Voice: On a formal rating scale, the student performs below the normed level for

voice quality, pitch, resonance, loudness, or duration and the condition is evident on

two separate occasions, three to four weeks apart, at different times.

collaboratively by the participants at a meeting pursuant to N.J.A.C. 6A:14-2.3(k). The

speech-language specialist who conducted the evaluation shall be considered a child study

team member at the meeting to determine whether a student is eligible for speech-language

services. A copy of the evaluation report(s) and documentation of eligibility shall be given to

the parent at least 10 calendar days prior to the meeting.

(d) The IEP shall be developed in a meeting pursuant to N.J.A.C. 6A:14-2.3 and 3.7. The

speech-language specialist shall be considered the child study team member, the individual

who can interpret the instructional implications of evaluation results, and the service provider

at the IEP meeting. The speech-language specialist shall not be excused from an IEP

meeting pursuant to N.J.A.C. 6A:14-2.3(k)10. The speech-language specialist may serve as

the agency representative at the IEP meeting.

(e) When a student has been determined eligible for speech-language services and other

disabilities are suspected or other services are being considered, the student shall be referred

to the child study team.

6A:14-3.7 Individualized education program

(a) A meeting to develop the IEP shall be held within 30 calendar days of a determination that a

student is eligible for special education and related services or eligible for speech-language

services. An IEP shall be in effect before special education and related services are provided

to a student with a disability and the IEP shall be implemented as soon as possible following

the IEP meeting.

1. At the beginning of each school year, the district board of education shall have an IEP

in effect for every student who is receiving special education and related services

from the district board of education;

2. Every student's IEP shall be accessible to each regular education teacher, special

education teacher, related services provider, and other service provider who is

responsible for its implementation;

3. The district board of education shall inform each teacher and provider described in

(a)2 above of his or her specific responsibilities related to implementing the student's

IEP and the specific accommodations, modifications, and supports to be provided for

the student in accordance with the IEP. The district board of education shall maintain

documentation that the teacher and provider, as applicable, has been informed of his

or her specific responsibilities related to implementing the student's IEP; and

4. The district board of education shall ensure that there is no delay in implementing a

student's IEP, including any case in which the payment source for providing or

paying for special education and related services is being determined.

(b) The IEP shall be developed by the IEP team pursuant to N.J.A.C. 6A:14-2.3 and this section

for students classified eligible for special education and related services or pursuant to

N.J.A.C. 6A:14-3.6(d) for students classified eligible for speech-language services.

1. Consider the strengths of the student and the concerns of the parents for enhancing

the education of their child;

2. Consider the academic, developmental, and functional needs of the student;

3. Consider the results of the initial evaluation or most recent evaluation of the student and,

as appropriate, the student's performance on any general State or districtwide assessment;

4. Consider the consistency of the location of the services for students who are prone to

regression due to frequent changes in location;

5. In the case of a student whose behavior impedes his or her learning or that of others,

consider, when appropriate, strategies to address that behavior, including positive

behavioral interventions and supports;

6. In the case of a student who is a multilingual learner, consider the language needs of

the student as related to the IEP;

7. In the case of a student who is blind or visually impaired, provide for instruction in

Braille and the use of Braille unless the IEP team determines, after an evaluation of

the student's reading and writing skills, and current and projected needs for

instruction in Braille, that such instruction is not appropriate;

8. Consider the communication needs of the student;

9. In the case of a student who is deaf or hard of hearing, consider the student's language

and communication needs, opportunities for direct communication with peers and

professional personnel in the student's language and communication mode, academic

level, and full range of opportunities for direct instruction in the student's language

and communication mode;

10. Consider whether the student requires assistive technology devices and services.

i. The district board of education shall ensure that assistive technology devices

or assistive technology services, or both, as defined in the IDEA, are made

available to a student with a disability if required as part of the student's

special education, related services, or supplementary aids and services.

ii. On a case-by-case basis, the use of school-purchased assistive technology

devices in a student's home or in other settings is required if the IEP team

determines that the student needs access to those devices in order to receive a

free, appropriate public education;

11. Beginning at age 14, or younger if determined appropriate by the IEP team, consider

the need for consultation from the Division of Vocational Rehabilitation Services,

Department of Labor and Workforce Development and other agencies providing

services for individuals with disabilities; and

12. Review the preschool day to determine what accommodations and modifications may be

required to allow the child to participate in the general education classroom and activities.

(d) The IEP may be amended without a meeting of the IEP team as follows:

1. The IEP may be amended if the parent makes a written request to the district board of

education for a specific amendment to a provision(s) of the IEP and the district board

of education agrees;

2. The district board of education provides the parent a written proposal to amend a

provision(s)of the IEP and, within 15 days from the date the written proposal is

provided to the parent, the parent consents in writing to the proposed amendment;

3. All amendments pursuant to (d)1 and 2 above shall be incorporated in an amended

IEP or an addendum to the IEP, and a copy of the amended IEP or addendum shall be

provided to the parent within 15 days of receipt of parental consent by the district

board of education; and

4. If an IEP is amended pursuant to this subsection, the amendment shall not affect the

requirement in (i) below that the IEP team review the IEP at a meeting annually, or

more often if necessary.

(e) With the exception of an IEP for a student classified as eligible for speech-language services,

the IEP shall include, but not be limited to:

1. A statement of the student's present levels of academic achievement and functional

performance, including, but not limited to:

i. How the student's disability affects the student's involvement and progress in

the general education curriculum; or

ii. For preschool students, as appropriate, how the disability affects the student's

participation in appropriate activities;

2. Where appropriate, a statement of detailed measurable annual academic and

functional goals that shall be related, as appropriate, to the New Jersey Student

Learning Standards through the general education curriculum unless otherwise

required according to the student's educational needs, or appropriate, student-specific

functional needs. For all students, the annual academic and functional goals shall be

measurable and apprise parents and educational personnel providing special

education and related services to the student of the expected level of achievement

attendant to each goal.

3. Such measurable annual goals shall include benchmarks or short-term objectives

related to:

i. Meeting the student's needs that result from the student's disability to enable the

student to be involved in and progress in the general education curriculum; and

ii. Meeting each of the student's other educational needs that result from the

student's disability;

4. A statement of the special education and related services and supplementary aids and

services that shall be provided for the student, or on behalf of the student. The special

education and related services and supplementary aids and services shall be based, to

the extent practicable, on peer-reviewed research. A statement of the program

modifications or supports for school personnel that shall be provided for the student:

i. To advance appropriately toward attaining the measurable annual academic

and functional goals;

ii. To be involved and progress in the general education curriculum according to

(e)1 above and to participate in extracurricular and other nonacademic

activities; and

iii. To be educated and participate with other students with disabilities and

nondisabled students;

5. A statement, as appropriate, of any integrated therapy services to be provided

addressing the student’s individualized needs in his or her educational setting;

6. An explanation of the extent, if any, to which the student shall not participate with

nondisabled students in the general education class and in extracurricular and

nonacademic activities;

7. A statement of any individual modifications in the administration of Statewide or

districtwide assessments of student achievement needed for the student to participate

in such assessment.

i. If the IEP team determines that the student shall not participate in a particular

Statewide or districtwide assessment of student achievement (or part of such an

assessment), a statement of why that assessment is not appropriate for the student

pursuant to N.J.A.C. 6A:14-4.10 and a statement of how that student shall be

assessed and which assessment methodology is appropriate for the student;

8. A statement that specifies the projected date for the beginning of the services and

modifications described at (e)4 above, and the anticipated frequency, location, and

duration of those services and modifications;

9. Beginning at age 14, a statement of the State and local graduation requirements that

the student shall be expected to meet. The statement shall be reviewed annually. If a

student with a disability is exempted from, or there is a modification to, local or State

high school graduation requirements, the statement shall include:

i. Consistent with N.J.A.C. 6A:14-4.11, a rationale for the exemption or

modification based on the student's educational needs; and

ii. A description of the alternate proficiencies to be achieved by the student to

qualify for a State-endorsed diploma.

10. A statement of student's transition from an elementary program to the secondary

program, which shall be determined by factors including number of years in school;

social, academic, and vocational development; and chronological age;

11. Beginning with the IEP in place for the school year when the student will turn age 14,

or younger if determined appropriate by the IEP team, and updated annually:

i. A statement of the student’s strengths, interests, and preferences;

ii. Identification of a course of study and related strategies and/or activities that:

(1) Are consistent with the student’s strengths, interests, and preferences; and

(2) Are intended to assist the student in developing or attaining

postsecondary goals related to training, education, employment, and, if

appropriate, independent living;

iii. As appropriate, a description of the need for consultation from other agencies

that provide services for individuals with disabilities including, but not limited

to, the Division of Vocational Rehabilitation Services in the Department of

Labor and Workforce Development; and

iv. As appropriate, a statement of any needed interagency linkages and

responsibilities;

12. Beginning with the IEP in place for the school year when the student will turn age 16,

or younger if deemed appropriate by the IEP team, a statement consisting of the

elements set forth in (e)11 above and appropriate measurable postsecondary goals

based upon age-appropriate transition assessments related to training, education,

employment, and, if appropriate, independent living, and the transition services

including a course of study needed to assist the child in reaching those goals.

i. The transition services for a student with a disability, as defined in IDEA,

shall consist of a coordinated set of activities that is designed within a results-

oriented process, that is focused on improving the academic and functional

achievement of the student with a disability to facilitate the student’s

movement from school to post-school activities, including postsecondary

education, vocational education, integrated employment (including supported

employment), continuing and adult education, adult services, independent

living, or community participation, and is based on the individual student's

needs, taking into account the student's strengths, preferences, and interests.

In addition to the above, transition services shall include:

(1) Instruction;

(2) Related services;

(3) Community experiences;

(4) The development of employment and other post-school adult living

objectives; and

(5) If appropriate, acquisition of daily living skills and functional

vocational evaluation;

13. The person(s) responsible to serve as a liaison to postsecondary resources and make

referrals to the resources as appropriate. If the student with disabilities does not

attend the IEP meeting where transition services are discussed, the district board of

education shall take other steps to ensure that the student's preferences and interests

are considered;

14. Beginning at least three years before the student reaches age 18, a statement that the

student and the parent have been informed of the rights under this chapter that will

transfer to the student on reaching the age of majority;

15. A statement of how the student's progress toward the annual goals described in (e)2

above will be measured;

16. A statement of how the student's parents will be regularly informed of their student's

progress toward the annual goals and the extent to which the progress is sufficient to

enable the student to achieve the goals by the end of the year. The parents of a student

with a disability shall be informed of the progress of their child at least as often as

parents of a nondisabled student are informed of their child's progress; and

17. For students in an out-of-district placement, the IEP shall set forth how the student

will participate with nondisabled peers in extracurricular and nonacademic activities,

and delineate the means to achieve such participation, including, if necessary,

returning the student to the district board of education to effectuate such participation.

(f) The IEP for the student classified as eligible for speech-language services shall include (e)1

through 8, 15, and 16 above. When appropriate, (e)11, 12, 13, and 14 above shall be

included. The statement of the current academic and functional achievement in (e)1 above

shall include a description of the student's status in speech-language performance and a

description of how the student's disability affects the student's involvement and progress in

the general education curriculum. Students who are classified as eligible for speech-language

services shall not be exempted from districtwide or Statewide assessment.

(g) If an agency other than the district board of education fails to provide the transition services

included in the student's IEP, the district board of education shall reconvene a meeting of the IEP

participants. Alternative strategies to meet the student's transition objectives shall be identified.

(h) If an agency invited to send a representative to the IEP meeting does not do so, the district

board of education shall take other steps to obtain the participation of the other agency in the

planning of any transition services.

(i) Annually, or more often if necessary, the IEP team shall meet to review and revise the IEP

and determine placement as specified in this subchapter.

1. The annual review of the IEP for a preschool student with disabilities shall be

completed by June 30 of the student's last year of eligibility for a preschool program.

2. The annual review of the IEP for an elementary school student with disabilities shall

be completed by June 30 of the student's last year in the elementary school program.

The annual review shall include input from the staff of the secondary school.

(j) The IEP team shall review:

1. Any lack of expected progress toward the annual goals and in the general education

curriculum, where appropriate;

2. The results of any reevaluation conducted according to N.J.A.C. 6A:14-3.8;

3. Information about the student, including information provided by the parents, current

classroom-based assessments and observations, and the observations of teachers and

related services providers;

4. The student's anticipated needs; or

5. Other relevant matters.

(k) For students in a separate setting, the IEP team shall, on an annual basis, consider activities

necessary to transition the student to a less restrictive placement.

(l) Signatures of persons who participated in the meeting to develop the IEP shall be maintained

by the district board of education and either a copy of the IEP or written notes setting forth

agreements with respect to the IEP as determined by the IEP team shall be provided to the

parents at the conclusion of the meeting.

(m) When the parent declines participation in an IEP meeting or is in disagreement with the

recommendations, the remaining participants shall develop a written IEP in accordance with

this section. However, initial implementation of special education cannot occur until consent

is obtained. For other than initial implementation of special education, consent is not

required. The parents shall be provided written notice according to N.J.A.C. 6A:14-2.3.

6A:14-3.8 Reevaluation

(a) Within three years of the previous classification, a multi-disciplinary reevaluation shall be

completed to determine whether the student continues to be a student with a disability.

Reevaluation shall be conducted earlier if conditions warrant or if the student's parent or

teacher requests the reevaluation. However, a reevaluation shall not be conducted prior to the

expiration of one year from the date the parent is provided written notice of the determination

with respect to eligibility in the most recent evaluation or reevaluation, unless the parent and

district board of education both agree that a reevaluation prior to the expiration of one year as

set forth in this subsection is warranted. When a reevaluation is conducted earlier than three

years from the previous evaluation as set forth in this subsection, the reevaluation shall be

completed in accordance with the timeframes in (e) below.

1. If a parent provides written consent and the district board of education agrees that a

reevaluation is unnecessary, the reevaluation may be waived. If a reevaluation is

waived, the date of the parent’s written consent shall constitute the date upon which

the next three-year period for conducting a reevaluation shall commence.

(b) As part of any reevaluation, the IEP team shall determine the nature and scope of the

reevaluation according to the following:

1. The IEP team shall review existing evaluation data on the student, including:

i. Evaluations and information provided by the parents;

ii. Current classroom-based assessments and observations; and

iii. Observations by teachers and related services providers; and

2. On the basis of that review, and input from the student's parents, the IEP team shall

identify what additional data, if any, are needed to determine:

i. Whether the student continues to have a disability according to N.J.A.C.

6A:14-3.5(c) or 3.6(a);

ii. The present levels of academic achievement and functional performance, and

educational and related developmental needs of the student;

iii. Whether the student needs special education and related services, and the

student’s academic, developmental, functional, and behavioral needs and how

they should appropriately be addressed in the student’s IEP; and

iv. Whether any additions or modifications to the special education and related

services are needed to enable the student with a disability to meet annual goals

set out in the IEP and to participate, as appropriate, in the general education

curriculum.

3. If the IEP team determines that no additional data are needed to determine whether

the student continues to be a student with a disability, the district board of education:

i. Shall provide notice pursuant to N.J.A.C. 6A:14-2.3 to the student's parents of

the IEP team’s determination and the right of the parents to request an

assessment to determine whether the student continues to be a student with a

disability; and

ii. Shall not be required to conduct such an assessment unless requested by the

student's parents;

4. If additional data are needed, the IEP team shall determine which child study team

members and/or specialists shall administer tests and other assessment procedures to

make the required determinations in (b)2i through iv above.

district board of education shall obtain consent from the parent pursuant to N.J.A.C. 6A:14-2.3.

1. Individual assessments shall be conducted pursuant to N.J.A.C. 6A:14-3.4(f)1

through 5 or (g), as appropriate.

(d) A reevaluation shall be conducted when a change in eligibility is being considered, except

that a reevaluation shall not be required before the termination of a student's eligibility under

this chapter due to graduation or exceeding age 21.

(e) Unless the parent and district board of education agree to waive a reevaluation, all

requirements of this section for performing a reevaluation, as applicable, shall be completed

within 60 days of the date the parent provides consent for the assessments to be conducted as

part of the reevaluation or by the expiration of the three-year timeframe from completion of

the prior evaluation or reevaluation, whichever occurs earlier.

(f) When a reevaluation is completed:

1. A meeting of the student's IEP team according to N.J.A.C. 6A:14-2.3(k)2 or 3.6(c)

shall be conducted to determine whether the student continues to be a student with a

disability. A copy of the evaluation report(s) and documentation of the eligibility

shall be given to the parent at least 10 days prior to the meeting.

2. If the student remains eligible, an IEP team meeting according to N.J.A.C. 6A:14-

2.3(k)2 or 3.6(d) shall be conducted to review and revise the student's IEP.

(g) By June 30 of a student's last year of eligibility for a program for preschoolers with

disabilities, a reevaluation shall be conducted and, if the student continues to be a student

with a disability, the student shall be classified according to N.J.A.C. 6A:14-3.5(c) or 3.6(a).

6A:14-3.9 Related services

(a) Related services, including, but not limited to, counseling, occupational therapy, physical

therapy, school nurse services, recreation, social work services, medical services, and speech-

language services, shall be provided to a student with a disability when required for the

student to benefit from the educational program. Related services shall be provided by

appropriately certified and/or licensed professionals, as specified in the student's IEP and

according to the following:

1. Counseling services that are provided by school district personnel shall be provided

by certified school psychologists, social workers, or guidance counselors.

2. Counseling and/or training services for parents shall be provided to assist them in

understanding the special educational needs of their child.

3. Speech and language services may be provided as a related service to a student who is

classified as "eligible for special education and related services." Assessment by a

speech-language specialist is required. The student shall meet the eligibility criteria

for the classification of "eligible for speech-language services" but shall not be

classified as such.

4. Occupational therapy and physical therapy may be provided by therapy assistants

under the supervision of the certified and, where required, licensed therapist in

accordance with all applicable State statutes and rules.

i. Prior to the provision of occupational therapy, assessment by a certified (and,

where required, licensed) occupational therapist and development of an IEP

are required.

ii. Prior to the provision of physical therapy, assessment by a certified and

licensed physical therapist and development of an IEP are required.

5. A district board of education or approved private school for students with disabilities

may contract for the provision of speech-language services, counseling services,

occupational therapy, and/or physical therapy in accordance with N.J.A.C. 6A:14-5.

6. Recreation shall be provided by certified school personnel.

7. Transportation shall be provided in accordance with N.J.A.C. 6A:27-5.

8. Nursing services shall be provided as a related service only to the extent such services

are designed to enable a child with a disability to receive a free, appropriate public

education as described in the student’s IEP.

9. Medical services shall be provided as a related service for diagnostic and evaluation

purposes only.

10. Therapy services may be integrated into the context of ongoing activities or routines

and provided by personnel as set forth in the student’s IEP.

11. When related services are provided by non-certified personnel because there is no

certification required, such services shall be provided under the supervision of

certified district board of education personnel.

12. Other related services shall be provided as specified in the student's IEP.

(b) School personnel may give advice to parents regarding additional services that are not

required by this chapter. Such advice places no obligation on the district board of education

to provide or fund such services.

appropriate, and pursuant to the following conditions:

1. The student is confined to the home or another out-of-school setting due to a temporary

or chronic health condition or a need for treatment that precludes participation in the

student’s usual educational setting, pursuant to N.J.A.C. 6A:16-10.

i. To request virtual related services due to a temporary or chronic health

condition, the parent shall submit to the school district a request that includes a

written order from the student’s physician verifying the projected need for

confinement at the student’s residence or other treatment setting for more than 10

consecutive school days or 20 cumulative school days during the school year.

ii. The school district shall forward the written determination to the school

physician, who shall verify the student’s need for virtual related services. The

school physician may contact the student’s physician to secure additional

information concerning the student’s diagnosis or need for treatment and shall

either verify the need for virtual related services or shall provide to the district

board of education the reason(s) for denial.

iii. The school district shall notify the parent concerning the school physician’s

verification or reason(s) for denial within five school days after the school

district’s receipt of the written determination by the student’s physician.

iv. The IEP team shall meet to determine, for each related service required by the

IEP, whether the related service will be provided virtually or in-person. The

school district shall provide the student with virtual related services within

five school days after the school district’s receipt of the school physician’s

verification or, if verification is made prior to the student’s confinement,

during the first week of the student’s confinement to the home or another out-

of-school setting.

v. The school district shall be responsible for the costs of providing virtual related

services, either directly or through a contract with another district board of

education, educational services commission, jointure commission, or approved

clinic or agency. The costs shall include the cost of any needed equipment.

vi. When the provision of home or out-of-school instruction exceeds 30

consecutive days in a school year, the IEP team shall convene a meeting to

review the continued need for virtual related services and, if appropriate,

revise the student’s IEP.

2. A school building or school district is closed pursuant to N.J.S.A. 18A:7F-9.b or c

and the school district has implemented its program of virtual or remote instruction

pursuant to N.J.A.C. 6A:32-13; or

3. The appropriate local health agency or officer or the student’s physician determines

that the student requires a mandatory period of isolation/quarantine for at least five

days because the student’s presence in school may jeopardize the health of others

because the student has contracted a communicable disease or has been exposed to a

communicable disease.

i. The IEP team shall meet to determine, for each related service required by the

IEP, whether the related service will be provided virtually or in-person.

Subchapter 4. Programs and Instruction

6A:14-4.1 General requirements

(a) Each district board of education shall provide educational programs and related services for

students with disabilities required by the IEPs of students for whom the district board of

education is responsible.

(b) A district board of education proposal to establish or eliminate special education programs or

services shall be approved by the Department of Education through the county office of

education.

including preschoolers with disabilities, shall be at least as long as that established for

nondisabled students. The IEP team may, in its discretion, alter the length of the school day

based on the needs of the student.

(d) District board of education operated special class programs for preschool children with a

disability shall be in operation five days per week, one day of which may be used for parent

training and at least four days of which shall provide a minimum total of 10 hours of student

instruction, with the following exception:

1. Classes for preschool children with a disability operated by a district board of

education shall operate at least as long as any district board of education program for

nondisabled preschoolers, but not less than 10 hours per week.

(e) If a classroom aide is employed, he or she shall work under the direction of a principal,

special education teacher, general education teacher, or other appropriately certified

personnel in a special education program. The job description of a classroom aide shall be

approved by the Department of Education through the county office of education.

(f) Physical education services, specially designed if necessary, shall be made available to every

student with a disability age five through 21, including students in separate facilities.

(g) When a student with a disability transfers from one New Jersey school district to another, or

from an out-of-State school district to a New Jersey school district, the child study team of

the school district into which the student has transferred shall conduct an immediate review

of the evaluation information and the IEP and, without delay, in consultation with the

student’s parents, provide a program comparable to that set forth in the student’s current IEP

until a new IEP is implemented, as follows:

1. For a student who transfers from one New Jersey school district to another New

Jersey school district, the IEP shall be implemented as written if the parents and

district board of education agree. If the appropriate district board of education staff

do not agree to implement the current IEP, the district board of education shall

conduct all necessary assessments and, within 30 days of the date the student enrolls

in the school district, develop and implement a new IEP for the student.

2. If the student transfers from an out-of-State school district, the appropriate district

board of education staff shall conduct any assessments determined necessary and,

within 30 days of the date the student enrolls in the school district, develop and

implement a new IEP for the student.

3. The appropriate district board of education staff shall take reasonable steps to

promptly obtain the student’s records, including the current IEP and supporting

documentation, from the previous school district in accordance with N.J.A.C. 6A:32.

The school district in which the student was previously enrolled shall take reasonable

steps to promptly respond to all requests for records of students transferring from one

district board of education to another district board of education.

(h) When the IEP of a student with a disability does not describe any restrictions, the student shall

be included in the general education program provided by the district board of education.

1. When instruction in general education subjects or content areas is provided to groups

consisting solely of students with disabilities, the size of the groups and age range

shall conform to the requirements for special class programs described in this

subchapter. An exception to the age range and group size requirements may be

requested by writing to the Department of Education through the county office of

education pursuant to N.J.A.C. 6A:14-4.9.

2. When students with disabilities participate in physical education, intramural and

interscholastic sports, nonacademic and extracurricular activities in groups consisting

solely of students with disabilities, the age range and group size shall be based on the

nature of the activity, needs of the students participating in the activity, and the level

of supervision required.

(i) Each district board of education, through appropriate personnel, shall establish and

implement a plan to evaluate special education programs and services according to N.J.S.A.

18A:7A-10, 11, and 14 and this chapter.

(j) Each district board of education shall ensure that all students with disabilities have available

to them the variety of educational programs and services available to nondisabled students.

(k) Prior to the implementation of the IEP, the district board of education shall provide the parent

with the opportunity to observe the proposed educational placement, including the general

education setting, special class programs, and out-of-district placements in a program

operated by another district board of education or a private school placement.

(l) When a student with a disability receives instruction for a particular subject area in either a

single-subject resource program or a special class program, the student shall receive at least

the same amount of instructional time as that provided general education students for each

subject area. For students in a single-subject resource program outside the general education

class, the student’s IEP shall specify the proportion of time in the general education

classroom and the resource program for each subject area.

(m) When a student with a disability transfers from a nonpublic school with a services plan,

appropriate school district staff shall conduct an immediate review of the services plan and

shall provide comparable services pending completion of any necessary assessments and, as

appropriate, the development of an IEP for the student. An IEP for the student shall be in

place within 60 calendar days from the date of enrollment in the school district.

6A:14-4.2 Placement in the least restrictive environment

(a) Students with disabilities shall be educated in the least restrictive environment. Each district

board of education shall ensure that:

1. To the maximum extent appropriate, a student with a disability is educated with peers

who are not disabled;

2. Special classes, separate schooling, or other removal of a student with a disability from

the student's general education class occurs only when the nature or severity of the

educational disability is such that education in the student's general education class with

the use of appropriate supplementary aids and services cannot be achieved satisfactorily;

3. A full continuum of alternative placements according to N.J.A.C. 6A:14-4.3 is

available to meet the needs of students with disabilities for special education and

related services;

4. Placement of a student with a disability is determined at least annually and, for a

student in a separate setting, activities necessary to transition the student to a less

restrictive placement are considered at least annually;

5. Placement is based on his or her IEP;

6. Placement is provided in appropriate educational settings as close to home as possible;

7. When the IEP does not describe specific restrictions, the student is educated in the

school he or she would attend if not a student with a disability;

8. Consideration is given to:

i. Whether the student can be educated satisfactorily in a general education

classroom with supplementary aids and services;

ii. A comparison of the benefits provided in a general education classroom and

the benefits provided in a special education classroom; and

iii. The potentially beneficial or harmful effects which a placement may have on

the student with disabilities or the other students in the class;

9. A student with a disability is not removed from the age-appropriate general education

classroom solely based on needed modifications to the general education curriculum;

10. Placement in a program option is based on the individual needs of the student; and

11. Determinations regarding the restrictiveness of a particular program option are based

solely on the amount of time a student with disabilities is educated outside the general

education setting.

(b) Each district board of education shall provide nonacademic and extracurricular services and

activities in the manner necessary to afford students with disabilities an equal opportunity for

participation in those services and activities.

1. In providing or arranging for the provision of nonacademic and extracurricular

services and activities, each district board of education shall ensure that each student

with a disability participates with nondisabled peers in those services and activities to

the maximum extent appropriate.

6A:14-4.3 Program options

(a) All students shall be considered for placement in the general education class with

supplementary aids and services including, but not limited to, the following:

1. Curricular or instructional modifications or specialized instructional strategies;

2. Assistive technology devices and services as defined in N.J.A.C. 6A:14-1.3;

3. Teacher aides;

4. Related services;

5. Integrated therapies;

6. Consultation services; and

7. In-class resource programs.

(b) If it is determined that a student with a disability cannot remain in the general education setting

with supplementary aids and services for all or a portion of the school day, a full continuum of

alternative placements as set forth in this subsection shall be available to meet the needs of the

student. Alternative educational program options include placement in the following:

1. Single-subject resource programs outside the general education class;

2. A special class program in the student's school district;

3. A special education program in another school district;

4. A special education program in a county vocational school district;

5. A special education program in the following settings:

i. A county special services school district;

ii. An educational services commission;

iii. A jointure commission; and

iv. A New Jersey approved private school for students with disabilities or an out-of-

State school for students with disabilities in the continental United States

approved by the department of education in the state where the school is located;

6. A program operated by a department of New Jersey State government;

7. A community rehabilitation program;

8. A program in a hospital, convalescent center, or other medical institution;

9. Individual instruction at home or in other appropriate facilities, with the prior written

notice to the Department of Education through the county office of education;

10. An accredited nonpublic school that is not specifically approved for the education of

students with disabilities pursuant to N.J.A.C. 6A:14-6.5;

11. Instruction in other appropriate settings according to N.J.A.C. 6A:14-1.1(d); and

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12. An early intervention program (which is under contract with the Department of

Health) in which the child has been enrolled for the balance of the school year in

which the child turns age three.

school year program. An extended school year program provides for the extension of special

education and related services beyond the regular school year. An extended school year

program is provided in accordance with the student's IEP when an interruption in educational

programming causes the student's performance to revert to a lower level of functioning and

recoupment cannot be expected in a reasonable length of time. The IEP team shall consider

all relevant factors in determining the need for an extended school year program.

1. The district board of education shall not limit extended school year services to particular

categories of disability or limit the type, amount, or duration of those services.

(d) A preschool age student with a disability may be placed by the district board of education in

an early childhood program operated by an agency other than a district board of education

according to the following:

1. The early childhood program shall be licensed or approved by a governmental agency;

2. The district board of education shall assure that the program is nonsectarian;

3. The district board of education shall assure the student's IEP can be implemented in

the early childhood program with any supplementary aids and services that are

specified in the student's IEP; and

4. The special education and related services specified in the student's IEP shall be

provided by appropriately certified and/or licensed personnel or by paraprofessionals

according to N.J.A.C. 6A:14-3.9(a) or 4.1(e).

6A:14-4.4 Program criteria: speech-language services

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(a) Speech-language services provided to a student with a disability shall be in addition to the

regular instructional program and shall meet the following criteria:

1. Speech-language services shall be given individually or in groups.

i. The size and composition of the group shall be determined by the IEP team in

accordance with the speech-language needs of the student(s) with educational

disabilities and shall not exceed five students.

2. Speech-language services shall be provided by a certified speech-language specialist

as defined in N.J.A.C. 6A:14-1.3.

6A:14-4.5 Program criteria: supplementary aids and services

(a) Supplementary aids and services are provided in the general education classroom to enable students

with disabilities to be educated with nondisabled peers to the maximum extent appropriate.

(b) A teacher aide may provide supplementary support to a student(s) with disabilities when the

IEP team has determined that the student requires assistance in areas including, but not

limited to, the following:

1. Prompting, cueing and redirecting student participation;

2. Reinforcing of personal, social, behavioral, and academic learning goals;

3. Organizing and managing materials and activities; and

4. Implementation of teacher-designed follow-up and practice activities.

according to the numbers for in-class resource programs.

(d) The district board of education shall provide to the teacher aide and the appropriate general

or special education teaching staff time for consultation on a regular basis, which shall be set

forth in policies adopted by the district board of education.

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(e) Consultation as a service on behalf of a student with disabilities or a group of students with

disabilities may be provided by a related services provider, a teacher of students with

disabilities, or a child study team member to the general education teacher and/or the teacher

aide. Such consultation shall be specified in each student’s IEP. The frequency and duration

of the consultation(s) shall be indicated in the IEP. Consultation may include, but is not

limited to, the following:

1. The development and demonstration of techniques and strategies;

2. Data collection on the effectiveness of the techniques and strategies; and

3. Development of positive behavioral supports.

6A:14-4.6 Program criteria: supplementary instruction and resource programs

(a) Supplementary instruction is provided to students with disabilities in addition to the primary

instruction for the subject being taught. The program of supplementary instruction shall be

specified in the student's IEP.

(b) Supplementary instruction in (a) above shall be provided individually or in groups according

to the chart at (m) below. Supplementary instruction may be provided in a general education

class or in a pull-out classroom that meets the requirements of N.J.A.C. 6A:26-6. Instruction

in more than one subject may be provided in a pull-out program of supplemental instruction.

subject or the level in which instruction is given.

(d) In-class resource programs and pull-out replacement resource programs are programs of

specialized instruction organized around a single subject and are provided to students with

disabilities by an appropriately certified teacher of students with disabilities. Instruction in

more than one subject may be provided in a pull-out resource program.

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(e) Resource programs shall offer individual and small group instruction to students with

disabilities. Resource programs may be provided in a general education class or in a pull-out

classroom that meets the requirements of N.J.A.C. 6A:26-6. When a resource program is

provided, it shall be specified in the student's IEP. Resource programs shall provide

instruction as defined in (i) and (j) below. In-class resource teachers may provide support and

replacement instruction at the same time in accordance with the group size limits for in-class

support in (m) below. Pull-out support and pull-out replacement shall not be provided by the

same teacher at the same time.

(f) If the resource program solely serves students with a visual impairment, the teacher shall be

certified as a teacher of blind or partially sighted. If the resource program solely serves

students with an auditory impairment, the teacher shall be certified with the appropriate

teacher of the deaf and/or hard of hearing certificate.

(g) A teacher of supplementary instruction and a resource program teacher shall be provided

time on a regular basis for consultation with appropriate general education teaching staff.

(h) An in-class resource program or an in-class program of supplementary instruction may be

provided up to the student's entire instructional day. At the elementary level, replacement

pull-out resource classes may be provided for up to no more than three subject areas per day.

At the secondary level, replacement pull-out resource classes may be provided for up to the

entire instructional day.

(i) In an in-class resource program, the student shall be provided modifications to the

instructional strategies or testing procedures, or other specialized instruction, to access the

general education curriculum in accordance with the student's IEP. The general education

teacher shall have primary instructional responsibility for the student in an in-class resource

program unless otherwise specified in the student's IEP. An in-class resource program shall

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be provided in the student's general education class at the same time as the rest of the class. A

student receiving an in-class resource program or an in-class program of supplementary

instruction shall be included in activities such as group discussion, special projects, field

trips, and other regular class activities as deemed appropriate in the student's IEP.

(j) In a pull-out replacement resource program, the general education curriculum and the

instructional strategies may be modified based on the student's IEP. The resource program

teacher shall have primary instructional responsibility for the student in the replacement

resource program and shall consult with the general classroom teacher, as appropriate.

(k) The age span in an approved single-subject pull-out resource program shall not exceed three

years in elementary programs and shall not exceed four years in secondary programs.

(l) When organizing a pull-out replacement resource class, the district board of education shall

consider the commonality of the instructional needs for the subject area being taught

according to the levels of academic achievement, learning characteristics, and management

needs of the students to be placed in the class. The resource program teacher shall provide

the primary instruction for the students in the class.

(m) Group sizes for supplementary instruction and resource programs shall not exceed the limits listed

below. Group size may be increased with the addition of an instructional aide, except where

noted, according to the following:

Preschool/Elementary Secondary

Resource No Aide Aide Required No Aide Aide required

and Supplementary

Instruction

In-class 8 -- 10 --

Pull-out support

and supplemental

instruction

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Single subject 6 7 to 9 9 10 to 12

Multiple subject 6 7 to 9 6 7 to 9

Preschool/Elementary Secondary

Replacement No Aide Aide Required No Aide Aide Required

Resource

Pull-out

Single subject 6 7 to 9 9 10 to 12

(n) The maximum number of students with disabilities that shall receive an in-class resource program

shall be eight at the preschool or elementary level, and 10 at the secondary level. The option to

increase the group size of an in-class program of supplementary instruction in accordance with

N.J.A.C. 6A:14-4.9 shall be prohibited.

(o) Pull-out support and pull-out replacement resource programs shall not be provided at the same

time by the same teacher. The group size of a pull-out replacement resource program may be

increased in accordance with N.J.A.C. 6A:14-4.9. The option to increase the group size for

multiple subject supplementary instruction according to N.J.A.C. 6A:14-4.9 shall be prohibited.

(p) Secondary programs shall be in schools in which any combination of grades six through 12

are contained and where the organizational structure is departmentalized for general

education students.

6A:14-4.7 Program criteria: special class programs, secondary, and vocational rehabilitation

(a) A special class program shall serve students who have similar intensive educational, behavioral,

and other needs related to their disabilities in accordance with their IEPs. Placement in a

special class program shall occur when the IEP team determines that the nature and severity of

the student’s disability is such that no other school-based program will meet the student’s needs.

Special class programs shall offer instruction in the New Jersey Student Learning Standards

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unless the IEP specifies a modified curriculum due to the nature or severity of the student's

disability. The general education curriculum and the instructional strategies may be modified

based on the student's IEP. Special class programs shall meet the following criteria:

1. Depending on the disabilities of the students assigned to the special class program,

the special class teacher shall hold certification as a teacher of students with

disabilities, teacher of blind or partially sighted, and/or teacher possessing the

appropriate teacher of the deaf or hard of hearing certificate;

2. The age span in special class programs shall not exceed four years in elementary

program, and shall not exceed four years in secondary programs; and

3. A kindergarten shall not be approved as a special class program.

(b) Special class programs for students with auditory impairments shall be instructed by a

teacher possessing the appropriate teacher of the deaf or hard of hearing certificate.

student is placed in a program that addresses moderate to severe intellectual disabilities or

severe to profound intellectual disabilities.

(d) Special class programs for students with learning and/or language disabilities may be

organized around the learning disabilities or the language disabilities or a combination of

learning and language disabilities.

(e) Instructional group sizes for preschool, elementary, and secondary special class programs

shall not exceed the limits listed in the table below. The instructional group size may be

increased with the addition of a classroom aide according to the numbers listed in Column III

as set forth in the table below. When determining whether a classroom aide is required,

students with a personal aide shall not be included in the student count:

I II III

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Program Instructional Size: Instructional Size:

No Classroom Aide Classroom Aide Required

Required

Auditory impairments 8 9 to 12

Autism

3 4 to 6

7 to 9

(Secondary only;

Two aides required)

Emotional regulation impairment

9 10 to 12

Intellectual disability

Mild 12 13 to 16

Moderate 10 11 to 13

Severe 3 4 to 6

7 to 9

(Two aides required)

Learning and/or language disabilities

Mild to moderate 10 11 to 16

Severe 8 9 to 12

Multiple disabilities 8 9 to 12

Preschool disabilities

-- 1 to 8

9 to 12

(Two aides required)

Visual impairments 8 9 to 12

_______

1 A program for students with autism shall maintain a student to staff ratio of three to one. For a

secondary program, two classroom aides are required when the class size exceeds six students.

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2 A program for students with severe to profound intellectual disabilities shall maintain a three to

one student to staff ratio.

3 A classroom aide is required for a preschool classroom. Two aides are required when the class

size exceeds eight students.

(f) Secondary special class programs are defined as programs that are located in schools in

which there is any combination of grades six through 12 and where the organizational

structure is departmentalized for general education students.

(g) In addition to the requirements for instructional size for special class programs pursuant to

(e) above, instruction may be provided in the secondary setting of a class organized around a

single content area consisting solely of students with disabilities instructed by a general

education teacher where an adapted general education curriculum is used shall have a

maximum instructional size of 12. The instructional size may be increased up to 16 students

with the addition of a classroom aide.

(h) Vocational education programs shall meet the following criteria:

1. For the student placed in a vocational program outside of the district board of

education, responsibility shall be as follows:

i. In a full-time county vocational school, all responsibility for programs and

services rests with the receiving district board of education;

ii. In a shared-time county vocational school and in an area vocational technical

school, primary responsibility rests with the sending district board of

education. Vocational personnel shall participate in the IEP decisions; and

2. In vocational education and related academic programs, class sizes shall be as follows:

i. For a class consisting of students with disabilities, the maximum class size

with an aide shall not exceed 15 students. Class size shall not exceed 10

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students without the addition of an aide unless prior written approval of the

Department of Education through the county office of education (county

office) is granted pursuant to N.J.A.C. 6A:14-4.9. Requests for approval of a

class size that exceeds 10 students without an aide shall include, but not be

limited to, a description of the following student needs and instructional

considerations:

(1) The nature and degree of the student's educationally disabling condition;

(2) The interests, aptitudes, and abilities of the student;

(3) The functional level of the student;

(4) The employment potential of the student;

(5) The type of occupational area;

(6) Instructional strategies;

(7) Safety factors; and

(8) Physical facility requirements.

(i) Secondary level students may be placed in community rehabilitation programs for vocational

rehabilitation services according to the following:

1. Community rehabilitation programs shall be approved by a State agency including,

but not limited to, the New Jersey Department of Labor and Workforce Development,

Division of Vocational Rehabilitation Services, the New Jersey Department of

Human Services, and the New Jersey Commission for the Blind and Visually

Impaired to provide vocational evaluation, work adjustment training, job coaching,

skill training, supported employment, and time-limited job coaching;

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2. Placement shall be made according to the student's IEP. The IEP shall specify the

New Jersey Student Learning Standards to be met and shall address how the

instruction will be provided; and

3. Within 10 calendar days of placement in community rehabilitation facilities, the

district board of education shall provide written notification of the placement to the

county office.

6A:14-4.8 Program criteria: home instruction

(a) A student with a disability shall have his or her IEP implemented through one-to-one

instruction at home or in another appropriate setting when it can be documented that all other

less restrictive program options have been considered and have been determined

inappropriate.

1. Prior written notification that a district board of education intends to provide home

instruction shall be provided to the Department of Education through the county

office of education.

2. Notification shall be effective for a maximum of 60 calendar days, at which time

renewal of the notification may be made. Each renewal shall be for a maximum of 60

calendar days.

3. A written record of the student's home instruction, including dates and times during

which home instruction is provided, shall be maintained, and the teacher providing

instruction shall be appropriately certified as teacher of students with disabilities or

for the subject or level in which the instruction is given.

4. Instruction shall be provided for at least 10 hours per week. The 10 hours of

instruction per week shall be accomplished in at least three visits by a certified

teacher or teachers on at least three separate days.

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5. Instruction shall be provided at a location conducive to providing educational

services, taking into consideration the student’s disability and any unique

circumstances. The parent shall be consulted in determining the appropriate location

for the provision of home instruction.

6. If a parent repeatedly fails to make a student available for scheduled home

instruction, the district board of education shall consider whether the student is truant

in accordance with N.J.S.A. 18A:38-27 and proceed accordingly.

6A:14-4.9 Exceptions

(a) Exceptions for the age range and group sizes specified at N.J.A.C. 6A:14-4.4, 4.5, 4.6, and

4.7 shall be granted:

1. On an individual student basis;

2. Only with prior written approval of the Department of Education through the county

office of education (county office); and

3. For a period not to exceed the balance of the school year.

(b) The county office shall determine whether granting the exception would interfere with the

delivery of a free, appropriate public education to the student or other students in the group

and, on that basis, shall either:

1. Approve the request; or

2. Deny the request.

(d) The parent of a student with a disability for whom the exception is requested, and the parents

of the students who are affected by the request for an exception, shall be informed by the

district board of education that such a request is being submitted to the county office.

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(e) Upon approval of the exception by the county office, the district board of education or the

appropriate education agency shall inform the parents of the students with disabilities who

are affected by the exception.

(f) No waivers or equivalencies pursuant to N.J.A.C. 6A:5 shall be granted to this chapter.

6A:14-4.10 Statewide assessment

(a) Students with disabilities shall participate in the Statewide assessment system according to

the following:

1. Except as provided in (a)2 below, students with disabilities shall participate in

Statewide assessments pursuant to N.J.A.C. 6A:8-4.1. Accommodations and

modifications approved by the Department of Education shall be provided, when

determined necessary by the IEP team, to students with disabilities who participate in

the general Statewide assessments.

2. Students with disabilities shall participate in the alternate assessment for students

with disabilities in each content area where the nature of the student's disability is so

severe that the student is not receiving instruction in any of the knowledge and skills

measured by the Statewide assessment and the student cannot complete any of the

types of questions on the assessment in the content area(s) even with accommodations

and modifications.

6A:14-4.11 Graduation

(a) The IEP of a student with a disability who enters a high school program shall specifically

address the graduation requirements. The student shall meet the high school graduation

requirements pursuant to N.J.A.C. 6A:8-5.1, except as specified in the student's IEP. The IEP

shall specify which requirements would qualify the student with a disability for the State-

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endorsed diploma issued by the district board of education responsible for his or her

education.

(b) Graduation with a State-endorsed diploma is a change of placement that requires written

notice pursuant to N.J.A.C. 6A:14-2.3(f) and (g).

1. As part of the written notice, the parent shall be provided with a copy of the

procedural safeguards statement published by the Department of Education.

2. As with any proposal to change the educational program or placement of a student

with a disability, the parent may resolve a disagreement with the proposal to graduate

the student by requesting mediation or a due process hearing prior to graduation.

3. In accordance with N.J.A.C. 6A:14-3.8(d), a reevaluation shall not be required.

4. When a student graduates or exceeds the age of eligibility, the student shall be

provided a written summary of his or her academic achievement and functional

performance prior to the date of the student’s graduation or the conclusion of the

school year in which he or she exceeds the age of eligibility. The summary shall

include recommendations to assist the student in meeting his or her postsecondary

goals.

empowered to grant a diploma, the student shall have the choice of receiving the diploma of

the school attended or the diploma of the school district of residence.

1. If the school the student is attending declines to issue a diploma to the student, the

district board of education of the school district of residence shall issue the student a

diploma if the student has satisfied all State and local graduation requirements, as

specified in the student’s IEP.

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(d) If a district board of education grants an elementary school diploma, a student with a

disability who fulfills the requirements of his or her IEP shall qualify for and receive a

diploma.

(e) Students with disabilities who meet the standards for graduation according to this section

shall have the opportunity to participate in graduation exercises and related activities on a

nondiscriminatory basis.

Subchapter 5. Providing Educational And Related Services

6A:14-5.1 General requirements

(a) Each district board of education, independently or through joint agreements, shall employ or

contract with child study teams, as set forth at N.J.A.C. 6A:14-3.1(b), speech-language

specialists, and other school personnel in numbers sufficient to ensure provision of required

programs and services pursuant to this chapter.

1. Joint agreements for child study team services may be entered into with local

education agencies, including other district boards of education, educational services

commissions, jointure commissions, and county special services school districts.

2. A district board of education may supplement child study team services with

additional teams through contracts or joint agreements.

3. If a vacancy occurs on a child study team because of an absence of a member(s) of

the team for an identified period of time, the district board of education may contract,

for the duration of any such vacancy, with a clinic or agency approved by the

Department of Education, an individual, or another district board of education for the

services provided by the absent team member(s).

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(b) When a district board of education provides its educational program through another New

Jersey district board of education, responsibility for this chapter’s requirements shall be

according to the following:

1. In a sending-receiving relationship pursuant to N.J.S.A. 18A:38-1 et seq., when all

the students of one or more grades of a district board of education attend a school(s)

operated by another district board(s) of education, the receiving district board of

education shall be responsible for determining the eligibility of the sending district

board of education’s students and developing and implementing their IEPs.

2. When individual students are placed by a district board of education in a school

operated by another district board of education, a contractual agreement shall be

made between district boards of education which specifies responsibility for

providing instruction, related services, and child study team services to students with

disabilities.

and agencies approved by the Department of Education, private professional practitioners

who are certified and licensed according to State statutes and rules, and agencies or programs

that are certified, approved, or licensed by the Department of Human Services or by the

Department of Health to provide counseling or mental health services. For the related

services listed at (c)1iii and v below, approved private schools for students with disabilities

may contract with private clinics and agencies approved by the Department of Education,

private professional practitioners who are certified and licensed according to State statutes

and rules, and agencies or programs that are certified, approved, or licensed by the

Department of Human Services or by the Department of Health to provide counseling or

mental health services. All instructional, child study team, and related services personnel

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provided by approved clinics and agencies and private professional practitioners shall be

fully certified. No instructional, child study team, and related services personnel provided by

approved clinics and agencies, or private professional practitioners, may, if a certification is

required for the discipline under which they are providing services, provide services pursuant

to this subsection if certified through the emergency certification process.

1. For public school students:

i. Independent child study team evaluations according to N.J.A.C. 6A:14-2.5;

ii. Child study team services to supplement existing district board of education

services;

iii. Related services;

(1) Certified occupational therapy assistants, and others employed in a

supportive role to licensed and, where applicable, certified providers

of related services, shall work under the supervision of an

appropriately licensed and, where applicable, certified provider of such

services.

(2) Physical therapy assistants shall work under the supervision of a

certified physical therapist.

(3) Specialists in behavior modification or other disciplines for which

there is no license or certification shall hold, at a minimum, a

bachelor’s degree in education, psychology, or a related field from an

accredited institute of higher education and shall work under the

supervision of certified district board of education personnel.

iv. Home instruction; and

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v. Speech-language services provided by a speech-language specialist when a

district board of education or private school for students with disabilities is

unable to hire sufficient staff to provide the service.

2. For students attending nonpublic schools, the district board of education in which the

facility is located may contract for the following services:

i. Evaluation, determination of eligibility, classification, and the development of

a service plan;

ii. Supplementary instruction, speech-language services, and home instruction

for students determined eligible for such services; and

iii. English as a second language pursuant to N.J.A.C. 6A:15 and compensatory

education pursuant to N.J.S.A. 18A:46A-2.e for students eligible for such

services.

(d) District boards of education may purchase services listed under (c)1 and 2 above from

Department of Education approved clinics and agencies with prior written notice to the

Department of Education through the county office of education according to the following:

1. Notice of the intent to purchase services shall include the proposed terms of the

contract;

2. The notice shall be effective for one year; and

3. District boards of education are not required to provide prior notice to the Department

of Education when contracting for an independent child study team evaluation in

accordance with N.J.A.C. 6A:14-2.5.

(e) District boards of education may contract for medical diagnostic services with medical

clinics and agencies approved by another New Jersey State agency or appropriate state

agencies outside of New Jersey.

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6A:14-5.2 Approval procedures for clinics or agencies

(a) For the purposes of approval by the Department of Education, a clinic or agency shall consist

of three or more professionals. Initial approval of a clinic or agency shall require, but not be

limited to, submission and evaluation of the following:

1. A valid certificate of incorporation or certificate of formation. Where appropriate, any

licenses or permits required by ordinances in effect within the state, county, or

municipality where the clinic or agency provides its services shall be included in the

submission;

2. A description of the scope and nature of services to be offered;

3. A list of professional staff who will provide services. The list shall verify each

individual's certification and license, if a certification and/or license is required for

the discipline in which services are being provided, and the function each individual

shall fulfill;

i. Professional staff employed by a clinic or agency who work full time for a

district board of education, approved private school for students with

disabilities, or nonpublic school shall not provide service for the clinic or

agency during the hours of the individual's public school or, as applicable,

approved private school or nonpublic school employment;

ii. An employee of a district board of education, approved private school for

students with disabilities, or nonpublic school shall not provide service as an

employee of a clinic or agency to a student who is the responsibility of his or

her employing district board of education or enrolled in his or her approved

private school for students with disabilities or nonpublic school;

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4. Assurance that the clinic or agency has conducted the criminal history review of each

professional pursuant to N.J.S.A. 18A:6-7.1;

i. The clinic or agency shall submit to the Department of Education and

maintain documentation of the information regarding the criminal history

review;

5. Assurance that the facility(ies) in which the services are being provided meet

applicable building and other regulatory standards;

6. Assurance of an adequate accounting system according to generally accepted

accounting principles;

7. Assurance of a system for the collection, maintenance, confidentiality and access of

student records pursuant to N.J.A.C. 6A:32; and

8. Assurance of the maintenance of a log, which includes, but is not limited to:

i. A list of services provided;

ii. The date, time, and location of the services provided; and

iii. The names of the professional staff providing each service.

(b) Any clinic or agency denied approval by the Department of Education may appeal the

decision to the Commissioner of Education for a hearing pursuant to N.J.A.C. 6A:3,

Controversies and Disputes. The hearing shall be governed by the provisions of the

Administrative Procedure Act (see N.J.S.A. 52:14B-1 et seq. and 52:14F-1 et seq., as

implemented by N.J.A.C. 1:1).

by obtaining prior written approval from the Department of Education.

1. To amend the services provided, the agency or clinic shall submit the following:

i. A revised description of the scope and nature of services to be offered;

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ii. A list of professional staff who will provide the services. The list shall verify

each individual's certification and license, if one is required, and the function

the individual will fulfill; and

iii. Assurance that the criminal history record review has been conducted

pursuant to N.J.S.A. 18A:6-7.1.

2. To amend the location of the facility(ies), the agency or clinic shall submit an

assurance that the facility(ies) in which the services are to be provided meet

applicable building and other regulatory standards as required at (a)5 above.

(d) When a professional staff member leaves or a new professional staff member is hired, the

approved clinic or agency shall provide the Department of Education written notification

within seven calendar days of the change.

(e) Failure to comply with any requirement of this section may result in the loss of approval.

Subchapter 6. Requirements for Services in Nonpublic Schools

6A:14-6.1 Equitable participation under IDEA Part B

(a) The district board of education of the school district of attendance shall provide, as required

by Federal law and regulation under Part B of the IDEA, a genuine opportunity for the

equitable participation of students with disabilities who are enrolled in nonpublic schools or

early childhood programs by their parents.

1. The school district of attendance shall make the final decisions with respect to the

services to be provided to eligible students with disabilities enrolled in nonpublic

schools or early childhood programs.

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(b) The school district of attendance shall spend an amount of money equal to a proportionate

amount of Federal funds available under Part B of the IDEA for the provision of services to

students with disabilities who are attending nonpublic schools.

school district of attendance shall undertake a child find process in accordance with IDEA

and its implementing regulations to determine the number of parentally placed children with

disabilities attending nonpublic schools located within the school district.

1. As part of the child find process, the school district of attendance shall consult with

private school representatives and representatives of parents of parentally placed

nonpublic school children with disabilities in the design and development of special

education and related services for such children.

i. After consulting with representatives of participating private schools, the

district board of education shall obtain a signed, written affirmation that the

consultation as required by IDEA, 20 U.S.C. §§ 1400 et seq., and its

implementing regulations at 34 CFR §§ 300.1 et seq. occurred.

ii. If unable to obtain signed, written affirmation, the school district of

attendance shall forward documentation of the consultation process to the

Office.

iii. Nonpublic school officials may file a complaint with the Department of

Education if they believe the consultation process was not meaningful and

timely.

(1) The complaint shall set forth the basis for the alleged noncompliance.

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(2) The district board of education shall provide documentation of its

consultation process to the Department within 30 days of notification

of the filing of a complaint with respect to the consultation process.

(3) The Department shall then render a determination of whether the

consultation was meaningful and, if appropriate, order any necessary

corrective action.

(4) Appeals of a Department of Education determination with respect to

the consultation process under this subsection shall be made to the

Secretary of the United States Department of Education pursuant to

procedures set forth in IDEA, 20 U.S.C. §§ 1400 et seq., and its

implementing regulations at 34 CFR Part 300.

(d) Services pursuant to this section may be provided by district board of education personnel or

through contracts with individuals or approved clinics or agencies. In addition, services

provided pursuant to this section shall be secular, neutral, and non-ideological.

(e) The procedural safeguards available to nonpublic school students with disabilities and their

parents as specified by Federal law and rules under Part B of the IDEA shall apply.

1. The right to request mediation or a due process hearing applies only to the location,

identification, evaluation, determination of eligibility, and reevaluation of students

with disabilities enrolled in nonpublic schools or early childhood programs by their

parents.

2. Disputes regarding the provision of services to a particular nonpublic school student

with a disability shall be addressed through the complaint procedures according to

N.J.A.C. 6A:14-9.2.

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(f) If a nonpublic school student with a disability will receive special education or related

services from the school district of attendance, the school district of attendance shall:

1. Initiate and conduct meetings pursuant to N.J.A.C. 6A:14-2.3(k) to develop, review,

and revise a service plan for the student.

i. For services provided by the district board of education, the service plan for a

student with a disability enrolled in a nonpublic school or early childhood

program shall include the components described at N.J.A.C. 6A:14-3.7(e)1

through 6, 8, 14, 15, and 16. The transition requirements described at N.J.A.C.

6A:14-3.7(e) shall be included only when the district board of education is

providing transition services to the student; and

2. Ensure that a representative of the nonpublic school or early childhood program

attends each meeting. If the representative of the nonpublic school cannot attend, the

school district of attendance shall use other methods to ensure participation by the

nonpublic school, including individual or conference telephone calls.

6A:14-6.2 Provision of programs and services provided under N.J.S.A. 18A:46A-1 et seq. and

18A:46-19.1 et seq.

(a) The board of education of the district in which the nonpublic school is located shall provide

to nonpublic school students the programs and services required by this subchapter by itself,

or through joint agreements with other boards of education or through contracts with

educational services commissions or with clinics and agencies approved under N.J.A.C.

6A:14-5.

(b) Specifications for contracts to provide programs and services covered by this subchapter

shall be approved by the county superintendent of schools.

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provision of speech and language services, home instruction and supplementary instruction

shall be provided according to this chapter.

(d) English as a second language shall be provided according to N.J.S.A. 18A:46A-2c.

(e) Compensatory education shall be provided according to N.J.S.A. 18A:46A-2e.

(f) All special education programs and services required by this subchapter shall be provided

with parental consent in accordance with N.J.A.C. 6A:14-2.3.

(g) Those procedural safeguards available to nonpublic school students with disabilities and their

parents as specified by Federal law and rules under Part B of the IDEA shall apply.

1. The right to request mediation or a due process hearing applies only to the location,

identification, evaluation, determination of eligibility, and reevaluation of students

with disabilities enrolled in nonpublic schools.

i. For the services provided, the service plan for a student with a disability

enrolled in a nonpublic school shall include the components described in

N.J.A.C. 6A:14-3.7(e)1 through 6, (e)8 and (e)14 through 16.

2. Disputes regarding the provision of services to a particular nonpublic school student

with a disability shall be addressed through the complaint procedures according to

N.J.A.C. 6A:14-9.2.

(h) Personnel providing a program or service under this subchapter shall be highly qualified and

shall meet appropriate certification and if required, licensing requirements. Personnel shall

not be employed by the nonpublic school in which the student is enrolled with the exception

of personnel providing the types of instruction specified in N.J.A.C. 6A:14-5.1(c)2ii and iii.

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(i) Programs and services for nonpublic school students shall be provided in facilities approved

by the Department of Education through its county superintendent of schools according to

N.J.S.A. 18A:46-5 and 18A:46-19.5.

(j) Public and nonpublic school students may be grouped for speech correction and the other

instructional programs provided under this subchapter, when appropriate.

(k) When the provision of programs and/or services under this subchapter requires transportation

or the maintenance of vehicular classrooms, the board of education of the district in which

the nonpublic school is located shall provide the transportation and maintenance and the cost

shall be paid from State aid received under this subchapter.

(l) The board of education of the district in which the nonpublic school is located shall maintain

all records of nonpublic school students receiving programs and/or services under this

subchapter according to N.J.A.C. 6A:32.

6A:14-6.3 Fiscal management provided under N.J.S.A. 18A:46A-1 et seq. and 18A:46-19.1 et

seq.

(a) Each board of education of the district in which the nonpublic school is located shall provide

programs and services under this subchapter at a cost not to exceed the amount of State aid

funds.

(b) Each board of education of the district in which the nonpublic school is located shall

maintain an accounting system for nonpublic programs and services according to N.J.A.C.

6A:23A-16 through 22.

Education the total district cost for programs and services provided under this subchapter.

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(d) Each board of education of the district in which the nonpublic school is located shall receive

State aid for programs and services required by this subchapter for the succeeding school

year as available from appropriated funds for nonpublic school programs and services.

6A:14-6.4 End of the year report provided under N.J.S.A. 18A:46A-1 et seq. and 18A:46-19.1

et seq.

(a) Annually, the board of education shall submit to the Department of Education a report

describing the programs and services provided under this subchapter.

(b) The end of the year report shall include the numbers of nonpublic school students provided

each program or service and such other information as may be required by the Department of

Education.

6A:14-6.5 Placement in accredited nonpublic schools that are not specifically approved for the

education of students with disabilities

(a) Pursuant to N.J.S.A. 18A:46-14, school-age students with disabilities may be placed in

accredited nonpublic schools that are not specifically approved for the education of students

with disabilities with the consent of the Commissioner of Education, by order of a court of

competent jurisdiction, or by order of an administrative law judge as a result of a due process

hearing. Preschool-age students with disabilities may be placed in early childhood programs

operated by agencies other than a district board of education by the district board of

education pursuant to N.J.A.C. 6A:14-4.3(d) or by an administrative law judge as a result of

a due process hearing.

(b) The Commissioner's consent shall be based upon the district board of education’s

certification that the following requirements have been met:

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1. The nonpublic school is accredited. Accreditation means the on-going, on-site

evaluation of a nonpublic school by a governmental or independent educational

accreditation agency that is based upon written evaluation criteria that address

educational programs and services, school facilities, and school staff;

2. A suitable special education program pursuant to N.J.S.A. 18A:46-14.a through h

cannot be provided to the student;

3. The most appropriate placement for the student is this nonpublic school;

4. The program to be provided shall meet the requirements of the student's IEP;

5. The student shall receive a program that meets all the requirements of a thorough and

efficient education as defined at N.J.S.A. 18A:7A-5c through g. These requirements

shall be met, except as the content of the program is modified by the IEP based on the

educational needs of the student. Statewide assessment and graduation requirements

shall apply. Participation in Statewide assessment and/or exemptions from graduation

requirements shall be recorded in the student's IEP pursuant to N.J.A.C. 6A:14-

3.7(e)7 and 9.

i. All personnel providing either special education programs pursuant to

N.J.A.C. 6A:14-4.4, 4.5, 4.6, or 4.7 or related services pursuant to N.J.A.C.

6A:14-3.9 shall hold the appropriate educational certificate and license, if one

is required, for the position in which they function;

ii. All personnel providing regular education programs shall either hold the

appropriate certificate for the position in which they function or shall meet the

personnel qualification standards of a recognized accrediting agency;

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iii. All substitute teachers and aides providing special education and related

services shall be employed according to applicable rules at N.J.A.C. 6A:9B-7,

6A:32-4.2, and this chapter;

6. The student shall receive a comparable program to the program required to be

provided by the district board of education pursuant to N.J.S.A. 18A:35-1, 2, 3, 5, 7,

and 8, 18A:40A-1, and 18A:6-2 and 3 and N.J.A.C. 6A:8-3.1, and 6A:14-1, 2, 3, and

4. The requirements shall be met except as the content of the program is modified by

the IEP based on the educational needs of the student. Exemptions shall be recorded

in the student's IEP pursuant to N.J.A.C. 6A:14-3.7(e)7 and 9;

7. The nonpublic school provides services that are nonsectarian;

8. The nonpublic school complies with all relevant State and Federal antidiscrimination

statutes;

9. Written notice has been provided to the student's parent regarding this placement. The

written notice included a statement that:

i. The nonpublic school is not an approved private school for students with

disabilities and that the district board of education assumes the ongoing

monitoring responsibilities for the student's program;

ii. No suitable special education program could be provided to this student

pursuant to N.J.S.A. 18A:46-14; and

iii. This is the most appropriate placement available to this student;

10. The placement is not contested by the parents; and

11. The nonpublic school has been provided copies of N.J.A.C. 1:6A, 6A:14, and 6A:32.

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accredited nonpublic school shall be delegated to the administrative law judge assigned to the

case when:

1. The administrative law judge makes a factual determination that the certifications in

(b) above are met; or

2. The district board of education and the parent agree to a settlement of the matter that

would include placement under N.J.S.A. 18A:46-14, and the administrative law judge

approves the settlement. Approval may be granted if the district board of education

makes the certifications in (b) above. A copy of the signed consent application shall

be attached to the settlement agreement and forwarded by the district board of

education to the Department of Education through the county office of education.

(d) The district board of education shall be responsible to monitor the student's placement at

least annually to ensure the program's compliance with the certifications.

Subchapter 7. Receiving Schools

6A:14-7.1 General requirements

(a) Receiving schools include educational services commissions, jointure commissions, regional

day schools, county special services school districts, the Marie H. Katzenbach School for the

Deaf, approved private schools for students with disabilities (that may or may not provide

residential services) and public college operated programs for students with disabilities.

Receiving schools shall obtain prior written approval from the Department of Education to

provide programs for students with disabilities through contracts with district boards of

education.

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1. Approval to establish or change a program shall be based upon the criteria established

by the Department of Education in this subchapter.

2. Monitoring and approval shall be conducted on an ongoing basis by the Department

of Education.

(b) For a student in a program operated by, or under contract with, the Department of Education,

the district board of education retains responsibility for the provision of programs and

services under this chapter.

pursuant to this chapter.

1. Exceptions regarding age range and class size shall be requested by the district board

of education of the school district of residence and determined pursuant to N.J.A.C.

6A:14-4.9. District boards of education and providers of programs under this

subchapter shall maintain documentation of this approval.

(d) Annually, providers of programs under this subchapter shall prepare and submit a report to

the Department of Education through the county office of education. The report shall be

submitted on a format provided by the Department of Education and shall include the kind

and numbers of staff providing special education and related services.

(e) Annually, providers of programs pursuant to this subchapter shall prepare and submit a

report, in a format provided by the Department of Education, to the Department of Education

through the county office. The report shall include, but not be limited to, the number of

enrolled students by age, race, ethnicity, the number of students whose placements were

terminated during the previous school year, and, when known, the subsequent placement for

each student whose placement was terminated.

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(f) Out-of-State private schools for students with disabilities shall be approved to provide special

education programs by the department of education of the state in which they are located

prior to applying for eligibility to receive New Jersey students.

(g) The residential component of an approved private school for students with disabilities shall

be approved by either the New Jersey Department of Human Services or by the appropriate

government agency in the state in which the school is located.

(h) An employee of a district board of education who is directly or indirectly responsible for the

placement of students with disabilities shall have no interest in, and shall not be employed

by, any approved private school for students with disabilities that serves students with

disabilities placed by that district board of education.

6A:14-7.2 Approval procedures to establish a new approved private school for students with

disabilities

(a) Prior to the establishment of an approved private school for students with disabilities, an

application shall be submitted to the Department of Education according to the following

schedule:

1. The applicant shall submit a description of the program and services to be offered that

shall include, but not be limited to:

i. The educational philosophy of the program;

ii. Characteristics of the program, which shall include the number of students to

be served, numbers and types of classes, number of school days, and daily

hours in session;

iii. The curriculum and materials, including a description of how the New Jersey

Student Learning Standards will be implemented;

iv. A mechanism for evaluating student progress and program efficacy; and

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v. The organizational structure, including projected number of personnel by title,

job function, and personnel requirements, including certification;

2. The applicant shall include a survey of need indicating the number, age range, types

of students with disabilities to be served by the proposed programs/services, and the

reasons the students cannot be served in the school district of residence, supported by

documentation from district board(s) of education. The Department of Education

shall determine if the program to be provided by the approved private school for

students with disabilities is needed and shall notify the applicant of the decision no

later than 90 calendar days after receipt of the survey of needs.

i. Any appeal of a decision to deny approval may be made to the Commissioner

of Education in accordance with N.J.A.C. 6A:3;

3. Additionally, each approved private school for students with disabilities shall submit:

i. An affidavit that its programs and services for students with disabilities are

nonsectarian and in compliance with N.J.S.A. 18A:46-1 et seq., N.J.A.C.

6A:14, IDEA (20 U.S.C. §§ 1400 et seq.), and the Rehabilitation Act of 1973

(U.S. P.L. 93-112 Section 504, 29 U.S.C. § 794a);

ii. The administrative policies and procedures of the school;

iii. An assurance that necessary emergency procedures will be followed;

iv. A copy of the approval of the facility by the issuing agency, including a

certificate of occupancy and certification of health and fire approval;

v. A copy of the certificate of incorporation;

vi. Staffing information, which shall include a list of professional staff who will

provide services. The list shall verify each individual’s certification and

license, if one is required, the function he or she will perform, and that a

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criminal history review pursuant to N.J.S.A. 18A:6-7.1 has been completed

for the individual; and

vii. A projected budget in accordance with N.J.A.C. 6A:23A-18.

6A:14-7.3 Amendment procedures for receiving schools

(a) An approved receiving school for students with disabilities may amend its policies,

procedures, the services provided, or the location of its facilities by obtaining prior written

approval from the Department of Education through the county office of education.

1. To amend the policies, procedures, nature, and/or scope of the services provided, or

to increase or decrease the services provided, the approved receiving school shall

submit the following:

i. A copy of the revised policy and/or procedure;

ii. A revised description of the scope and nature of the services to be offered

pursuant to N.J.A.C. 6A:14-7.2; and

ii. A list of professional staff who will provide the services. The list shall verify

each individual's certification and license, if one is required, that a criminal

history review pursuant to N.J.S.A. 18A:6-7.1 has been completed for the

individual, and the function he or she shall perform.

2. To amend the location of its facilities, an approved private school for students with

disabilities shall submit a copy of the valid health, fire, HVAC inspections,

occupancy and, if applicable sewerage plant.

3. Pursuant to N.J.A.C. 6A:23A-18.4, if an approved private school for students with

disabilities seeks to expand the school and its program by opening an additional

location, the school shall submit an application for approval as a new private school

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for students with disabilities in accordance with this subchapter and receive approval

prior to operating an approved private school in the new location.

(b) When a professional staff member leaves or a new professional staff member is hired by an

approved private school for students with disabilities, the approved private school shall

provide written notification to the Department of Education through the county office of

education within seven calendar days of the change.

6A:14-7.4 Annual procedures for approved private schools for students with disabilities

(a) Annually, each approved private school for students with disabilities shall submit fiscal

pursuant to N.J.A.C. 6A:23A-18 to the Office of School Finance.

(b) Annually, each approved private school for students with disabilities shall obtain valid

certificates of fire inspection and, if applicable, health, HVAC inspections, and, sewerage

plant. The certificates shall be maintained and shall be available upon request for review by

the Department of Education through the county office of education.

6A:14-7.5 Responsibilities of district boards of education

(a) The educational program of a student with a disability provided through contractual

agreements pursuant to N.J.A.C. 6A:14-7.1(a) shall be considered the educational program of

the district board of education. The district board of education shall be responsible for the

development and annual review of the student’s IEP and the reevaluation of the student. At

least annually, the district board of education shall monitor the implementation of the IEP.

1. For students with disabilities placed in programs described in N.J.A.C. 6A:14-7.1(a),

representative(s) of the program and the district board of education shall participate in

meeting(s) according to N.J.A.C. 6A:14-2.3(k)2.

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(b) When a student with a disability is placed in a receiving school pursuant to N.J.A.C. 6A:14-

7.1(a), the district board of education shall provide written notification to the Department of

Education through the county office of education within 10 calendar days of the placement.

The notification shall include a copy of the student's IEP.

1. A district board of education shall place a student with a disability in a receiving

school only when it can assure that the student’s IEP can be implemented in that

setting.

i. The IEP of a student placed in a receiving school shall be amended by only

the IEP team of the district board of education.

2. Prior to placement in the receiving school, a representative of the district board of

education and, if possible, the parent shall visit the school.

3. When a district board of education places a student with a disability in an approved

residential private school in order to provide the student a free, appropriate public

education, the placement shall be at no cost to the parent. The district board of

education shall be responsible for special education costs, room, and board.

4. Placement of a student with a disability in an approved residential private school by a

public agency other than the district board of education shall be subject to the rules

governing public agencies and in this chapter. The district board of education shall

pay the nonresidential special education and related services costs. When the student

has been placed by a public agency empowered to make such placement, the district

board of education shall convene a meeting pursuant to N.J.A.C. 6A:14-2.3(k) to

revise the IEP as necessary to provide the student special education and related

services.

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N.J.A.C. 6A:14-7.10(b)2 or 6A:23A-18.15(f)2, a district board of education having a student

with a disability placed therein shall immediately begin seeking an alternative, appropriate

placement for the student.

6A:14-7.6 Provision of programs

(a) An educational program provided under this subchapter shall conform to the requirements of

N.J.A.C. 6A:14-2.8, the applicable provisions of N.J.A.C. 6A:14-4, and the student's IEP.

(b) When the parent or district board of education requests mediation or due process, the student

with a disability shall remain in the current placement, according to N.J.A.C. 6A:14-2.6(d)10

or 2.7(u), as applicable.

where a license is required, in accordance with State and Federal law.

(d) Each school shall have on staff a full-time non-teaching principal who shall be responsible

for administration and supervision of the school.

1. In lieu of assigning a full-time non-teaching principal to a school, a plan to ensure

adequate supervision of students and staff may be submitted to the executive county

superintendent for approval;

2. If the executive county superintendent approves the plan, the school shall operate in

accordance with the plan in lieu of having a full-time non-teaching principal on staff.

(e) Students with disabilities who are placed in receiving schools may be suspended for up to 10

consecutive or cumulative school days in a school year by the receiving school. Such

suspensions are subject to the same district board of education as the procedures for

nondisabled students as set forth at N.J.A.C. 6A:14-2.8. However, at the time of suspension,

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the principal of the receiving school shall provide written notification and a description of the

reason(s) for the action to the district board of education’s case manager.

(f) A receiving school shall not unilaterally implement disciplinary action involving removal to

an interim alternative educational setting, suspension of more than 10 consecutive or

cumulative school days in a school year, or termination of placement. Such disciplinary

action shall be implemented in conjunction with the sending district board of education

pursuant to N.J.A.C. 6A:14-2.8.

(g) Educational programs shall be open to observation at all times to representatives of the

sending district board of education and of the Department of Education.

(h) With prior written approval of the Department of Education, a school described at N.J.A.C.

6A:14-7.1(a) may operate an extended school year services.

(i) In accordance with N.J.A.C. 6A:32-8.3(b), a school day shall consist of not less than four

hours of actual school work, which does not include nonacademic time such as lunch and

recess periods. A special class program for preschoolers with disabilities operated pursuant to

N.J.A.C. 6A:14-4.1 may be considered a full-day program.

(j) A provider of programs under this subchapter shall notify the Department of Education a

minimum of 90 calendar days prior to ceasing operation or a change in ownership.

6A:14-7.7 Termination or withdrawal from a receiving school

(a) When a receiving school is considering the termination of a student's placement prior to the

end of the student's academic year, the receiving school shall immediately contact the

sending district board of education. The district board of education shall convene an IEP

meeting pursuant to N.J.A.C. 6A:14-2.3(k). The IEP meeting shall occur within 10 school

days of the date of the notification and shall include the participation of appropriate

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personnel from the receiving school, including a minimum of one person who participated in

making the recommendation to terminate the placement.

1. At the IEP meeting, the IEP team shall review the student’s current IEP and

determine the student's new placement. Written notice of any changes to the IEP and

the new placement shall be provided within 10 days of the date of the IEP meeting.

The student may be terminated from the current placement after the district board of

education has provided written notice to the parents pursuant to N.J.A.C. 6A:14-2.3.

The termination shall be in accordance with the provisions of the contract between

the receiving school and the district board of education.

(b) When the district board of education is considering the withdrawal of a student with a

disability from a receiving school prior to the end of the student's academic year, the district

board of education shall convene an IEP meeting pursuant to N.J.A.C. 6A:14-2.3(k). The IEP

meeting shall include appropriate personnel from the receiving school. At the IEP meeting,

the IEP team shall review the student’s current IEP and determine the student's new

placement. Written notice of any changes to the IEP and the new placement shall be provided

within 10 days of the date of the IEP meeting. The student may be terminated from the

current placement after the district board of education has provided written notice to the

parents pursuant to N.J.A.C. 6A:14-2.3. The termination shall be in accordance with the

provisions of the contract between the receiving school and the district board of education.

shall request that the district board of education convene an IEP meeting according to

N.J.A.C. 6A:14-2.3(k).

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(d) A student with a disability placed in a receiving school by the district board of education

shall receive a diploma from the district board of education if the requirements of N.J.A.C.

6A:14-4.11 are met.

6A:14-7.8 Fiscal management

(a) A district board of education shall pay tuition for all special education programs and required

services provided only after receiving individual student placement approval.

(b) The district board of education shall establish a written contract for each student with a

disability placed in a program approved under this subchapter. The contract shall include a

written agreement concerning tuition charges, costs, terms, conditions, and services and

programs to be provided for the student with a disability. For students placed in an approved

private school for students with disabilities, the district board of education shall use the

mandated tuition contract pursuant to N.J.A.C. 6A:23A-18.3.

of education.

(d) Transportation for students in residence at the Marie H. Katzenbach School for the Deaf shall

be according to N.J.A.C. 6A:27-5.2.

(e) All approved private schools for students with disabilities shall submit a certified audit to the

Department of Education by November first, for the prior school year, according to N.J.A.C.

6A:23A-18.10.

6A:14-7.9 Records

(a) All receiving schools under this subchapter shall conform to the requirements of N.J.A.C.

6A:32-7 pertaining to student records. In addition:

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1. All student records maintained by a receiving school under this subchapter shall be

returned to the sending district board of education when a student's program is

terminated.

2. Requests for access to student records by authorized organizations, agencies, or

persons as stated at N.J.A.C. 6A:32-7.5 shall be directed to the chief school

administrator or his or her designee of the sending district board of education for the

student with a disability.

3. The daily attendance record of all students in receiving schools under this subchapter

shall be maintained pursuant to N.J.A.C. 6A:23A-18.9 and made available to the

district board of education upon request. Habitual tardiness or prolonged absences of

five or more consecutive days shall be reported in writing to the chief school

administrator of the district board of education or his or her designee.

(b) Student progress reports shall be submitted to the sending district board of education at least

three times a year or as stipulated in the contract between the district board of education and

the receiving school.

6A:14-7.10 Monitoring and corrective action

(a) The Department of Education shall monitor approved private schools for students with

disabilities pursuant to N.J.A.C. 6A:14-9.1. On-site monitoring shall be conducted in

accordance with the schedule established by the Department of Education.

(b) When an approved private school is determined to be in noncompliance, Department of

Education actions may include, but are not limited, to the following:

1. The Department of Education may issue a conditional approval status when

noncompliance is demonstrated with State or Federal statute or rules and/or

implementation of a corrective action plan.

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i. An approved private school that is issued a conditional approval status may

not accept new students;

2. The Department of Education may revoke approval, effective at the end of a school

year, when chronic or systemic noncompliance is demonstrated; and

3. The Department of Education may immediately remove program approval when it is

documented that the health, safety, or welfare of the students is in danger.

of Education according to N.J.A.C. 6A:3.

Subchapter 8. Programs Operated by The Departments of Corrections, Children and Families,

and Human Services, and The Juvenile Justice Commission

6A:14-8.1 General requirements

(a) Special education programs provided in State facilities shall be operated pursuant to N.J.A.C.

6A:17-3 and this chapter.

(b) Each State agency operating approved special education programs shall develop a special

education plan pursuant to N.J.A.C. 6A:14-1.2. The plan also shall include:

1. A list of all State and Federal funding sources; and

2. A separate educational budget statement for each State facility.

on an IEP. A student who has an individualized habilitation plan or an individual treatment

plan, as defined by the Department of Human Services, shall have the IEP incorporated into

the plan.

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(d) The length of the school day for all special education programs under this subchapter, with

the exception of home instruction, shall be at least as long as that established for nondisabled

students. Educational programs shall operate at least 220 days each year.

(e) Each district board of education shall provide mandated student records pursuant to N.J.A.C.

6A:32-7 to programs operated by a State agency when a student is placed in a State facility.

The parent or adult student shall receive notification of the release of the records to the

facility. Permitted records pursuant to N.J.A.C. 6A:32 shall be released only with consent.

(f) For a student in residence in a State facility, the district board of education shall maintain the

educational records sent by the State facility pursuant to N.J.A.C. 6A:32-7.

(g) For a student in residence in a State facility, the district board of education shall facilitate the

entry of the student into the district board of education program, as appropriate.

(h) When a student is placed in a State facility by a public agency other than the district board of

education, the State facility shall provide a program according to the following:

1. If the student is a student with a disability, an immediate review of the classification

and IEP shall be conducted and the student shall be placed in a program consistent

with the goals and objectives of the current IEP.

2. If the student is not currently classified as a student with a disability, or if the State

facility does not have current school records, within 30 calendar days of placement in

the State facility, the State facility shall review the student's educational status and

determine if referral to the child study team is required.

6A:14-8.2 Procedural safeguards

(a) Mediation shall be available for a student in a State facility according to N.J.A.C. 6A:14-2.6.

(b) A request for a due process hearing for a student in a State facility shall be made to the

Department of Education according to N.J.A.C. 6A:14-2.7.

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(d) Surrogate parents shall be appointed according to N.J.A.C. 6A:14-2.2.

6A:14-8.3 Provision of programs

(a) A residential State facility may recommend placement of a student with a disability in a

school district. Documentation of attempts to place the student in the least restrictive

environment pursuant to N.J.A.C. 6A:14-4 shall be stated in the student's IEP. Tuition shall

be paid by the State facility to the district board of education where the student is placed.

(b) All personnel providing special education programs, related services, or multi-disciplinary

team services in State facilities shall hold the appropriate certificate and, if required, a license

for the position in which they function.

in the following manner:

1. The Department of Children and Families shall provide educational programs and

related services for students with disabilities in State-operated or contracted facilities;

2. The district board of education shall be responsible for providing the services

according to N.J.A.C. 6A:14-3.3 through 3.8. The day school program is responsible

for implementing the IEP developed by the district board of education; and

3. The district board of education shall be responsible to monitor the student's placement

at least annually to ensure the implementation of the IEP.

(d) An educational program for students with disabilities in a State residential facility shall be

commensurate with the educational program in a day school program.

(e) For students placed in State facilities, representative(s) of the program and the district board

of education shall participate in any meeting(s) according to N.J.A.C. 6A:14-2.3(k).

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(f) When a student in a State facility is in need of home instruction according to N.J.A.C. 6A:16-

10.1, the State facility shall implement the home instruction program.

Subchapter 9. Monitoring, Corrective Action, and Complaint Investigation

6A:14-9.1 Monitoring and corrective action

(a) The Department of Education shall monitor all programs and services required by this

chapter for compliance with New Jersey statutes, the New Jersey Administrative Code, the

approved special education plan, and Federal requirements under the Individuals with

Disabilities Education Act (IDEA).

1. The monitoring process shall include, but not be limited to, review of:

i. Provision of a free, appropriate public education in the least restrictive

environment;

ii. Provision of transition services; and

iii. Disproportionate representation of racial and ethnic groups in special

education and related services, to the extent the disproportionate

representation is the result of inappropriate identification.

(b) The monitoring procedures may include, but are not limited to:

1. Review of data, reports and student records;

2. On-site visits;

3. Comparison of a sample of IEPs with the programs and services provided;

4. Development of a required action plan to address areas of noncompliance identified

during the monitoring; and

5. Audit of Federal and State funds.

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Education and sent to the public or private agency.

(d) The required action plan shall include, but not be limited to, the following:

1. Objectives and strategies for correcting each noncompliance item cited, including

resources needed; and

2. The dates by which noncompliance will be corrected.

(e) The Department of Education shall maintain monitoring records for at least five years.

6A:14-9.2 Complaint investigation

(a) The Director of the Office or designee(s) shall be responsible for reviewing, investigating,

and taking action on any signed, written complaint regarding the provision of special

education and related services covered under this chapter.

(b) An organization or individual may request a complaint investigation by simultaneously

submitting a signed, written request to the Director of the Office and to the public agency

against which the complaint is directed. The complaint shall include:

1. A statement that a public or private education agency has violated the requirements of

State and/or Federal statute and/or regulation for the provision of special education

and related services;

2. The facts on which the statement is based; and

3. The time period when the alleged violation occurred.

i. The complainant shall allege a violation that occurred not more than one year

prior to the date that the complaint is received by the Director of the Office.

after receipt of the signed, written complaint and issue a report setting forth a final decision

regarding the complaint, unless the time period is extended pursuant to (c)5 below.

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1. If a party believes that a final decision includes an error that is material to the

determination in the decision, the party may inform the Office and the other party in

writing, within 15 days of the date of the report. The written notice shall identify the

asserted error and include any documentation to support the claim. The Office will

determine the appropriate steps to consider the claim of error after receipt of the

letter.

2. The investigation may include, but not be limited to:

i. Review of policies and procedures;

ii. Review of student record(s);

iii. Observation of programs;

iv. Interview(s);

v. An on-site investigation, if determined necessary; and

vi. If the parent consents, an opportunity for the education agency to engage the

parent in mediation or an alternative means of dispute resolution.

3. The complainant shall be given the opportunity to provide additional information,

either orally or in writing, about the allegations in the complaint.

4. The education agency against which the complaint is directed shall be provided an

opportunity to respond to the complaint and, at the discretion of the Director of the

Office or a designee, may be afforded an opportunity to resolve the issues in the

complaint prior to issuance of an investigation report.

5. The Director of the Office may extend the timeline for completion of the

investigation only if exceptional circumstances exist with respect to a particular

complaint, or if the parent and education agency agree to mediate the dispute or

engage in another means of dispute resolution.

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(d) If a written complaint is also the subject of a due process hearing or contains multiple issues

of which one or more are part of that hearing, the Office shall set aside the entire complaint

until the conclusion of the hearing.

1. If an issue raised in a complaint has been previously decided in a due process hearing

involving the same parties, the hearing decision is binding and the Office shall inform

the complainant to that effect.

(e) A report of findings, conclusions, and, when warranted, the required corrective actions shall

be issued within 60 calendar days after receipt of the written signed complaint unless the 60-

day time period is extended pursuant to (c)5 above.

(f) If the education agency is found to be in noncompliance, a corrective action plan in

accordance with the directive in the report shall be developed and submitted to the Office.

(g) The corrective action plan shall include, but not be limited to:

1. Objectives, strategies, and activities for correcting each noncompliance item cited,

including resources needed to obtain the objectives; and

2. The dates by which the noncompliance will be corrected.

(h) The Director of the Office shall review the corrective action plan and notify the education

agency if it is acceptable.

(i) The Office shall review and verify the implementation of the corrective action plan.

(j) When a corrective action plan is not submitted, is unacceptable, or is not implemented, the

Office shall notify the agency of the actions the Office intends to take.

(k) Nothing in this section shall be construed as limiting the right of parents or adult students to

seek a due process hearing with regard to issues raised in a request for complaint

investigation. If a due process hearing is sought while a complaint investigation is pending,

the complaint investigation with respect to all issues in the request for a due process hearing

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shall be placed in abeyance pending completion of the due process hearing. Upon completion

of the due process hearing, the complaint shall be processed pursuant to (d) above.

Subchapter 10. Early Intervention Programs

6A:14-10.1 Early intervention programs serving children between birth and age three

Early intervention programs shall be administered by the Department of Health as the lead agency in

collaboration with the Departments of Human Services and Education in accordance with P.L. 2012,

c. 17 and c. 45.

6A:14-10.2 General requirements when district boards of education contract with early

intervention programs under contract with the Department of Health for students age three

(a) When an IEP is developed by a district board of education for a child age three who has been

enrolled in an early intervention program and it is determined that the district board of

education shall provide a free, appropriate public education for the student by continuing the

program in the early intervention program for the balance of the school year, the following

requirements shall apply:

1. The district board of education shall be responsible for ensuring the requirements of

N.J.A.C. 6A:14-1.1(d) are met;

2. A contractual agreement shall be provided between the district board of education and

the early intervention program;

3. Personnel shall be appropriately certified and, if required, licensed; and

4. Applications for exceptions pursuant to N.J.A.C. 6A:14-4.9 shall be made by the

district board of education whenever necessary.

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(b) When the district board of education determines that the child who has been enrolled in the

early intervention program requires extended school year services, the district board of

education may contract with the early intervention program for the provision of that program.

157

Appendix A

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §§ 1415, 1412, 1414

20 U.S.C. § 1415

(k) Placement in alternative educational setting

(1) Authority of school personnel

(A) Case-by-case determination

School personnel may consider any unique circumstances on a case-by-case basis

when determining whether to order a change in placement for a child with a

disability who violates a code of student conduct.

(B) Authority

School personnel under this subsection may remove a child with a disability who

violates a code of student conduct from their current placement to an appropriate

interim alternative educational setting, another setting, or suspension, for not

more than 10 school days (to the extent such alternatives are applied to children

without disabilities).

If school personnel seek to order a change in placement that would exceed 10

school days and the behavior that gave rise to the violation of the school code is

determined not to be a manifestation of the child’s disability pursuant to

subparagraph (E), the relevant disciplinary procedures applicable to children

without disabilities may be applied to the child in the same manner and for the

same duration in which the procedures would be applied to children without

158

disabilities, except as provided in section 1412(a)(1) of this title although it may

be provided in an interim alternative educational setting.

(D) Services

A child with a disability who is removed from the child’s current placement under

subparagraph (G) (irrespective of whether the behavior is determined to be a

manifestation of the child’s disability) or subparagraph (C) shall—

(i) continue to receive educational services, as provided in section

1412(a)(1) of this title, so as to enable the child to continue to participate

in the general education curriculum, although in another setting, and to

progress toward meeting the goals set out in the child’s IEP; and

(ii) receive, as appropriate, a functional behavioral assessment, behavioral

intervention services and modifications, that are designed to address the

behavior violation so that it does not recur.

(E) Manifestation determination

(i) In general

Except as provided in subparagraph (B), within 10 school days of any

decision to change the placement of a child with a disability because of a

violation of a code of student conduct, the local educational agency, the

parent, and relevant members of the IEP Team (as determined by the

parent and the local educational agency) shall review all relevant

information in the student’s file, including the child’s IEP, any teacher

observations, and any relevant information provided by the parents to

determine—

159

(I) if the conduct in question was caused by, or had a direct and

substantial relationship to, the child’s disability; or

(II) if the conduct in question was the direct result of the local

educational agency’s failure to implement the IEP.

(ii) Manifestation

If the local educational agency, the parent, and relevant members

of the IEP Team determine that either subclause (I) or (II) of clause

(i) is applicable for the child, the conduct shall be determined to be

a manifestation of the child’s disability.

(F) Determination that behavior was a manifestation

If the local educational agency, the parent, and relevant members of the IEP Team

make the determination that the conduct was a manifestation of the child’s

disability, the IEP Team shall—

(i) conduct a functional behavioral assessment, and implement a

behavioral intervention plan for such child, provided that the local

educational agency had not conducted such assessment prior to such

determination before the behavior that resulted in a change in placement

described in subparagraph (C) or (G);

(ii) in the situation where a behavioral intervention plan has been

developed, review the behavioral intervention plan if the child already has

such a behavioral intervention plan, and modify it, as necessary, to address

the behavior; and

(iii) except as provided in subparagraph (G), return the child to the

placement from which the child was removed, unless the parent and the

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local educational agency agree to a change of placement as part of the

modification of the behavioral intervention plan.

(G) Special circumstances

School personnel may remove a student to an interim alternative educational

setting for not more than 45 school days without regard to whether the behavior is

determined to be a manifestation of the child’s disability, in cases where a child—

(i) carries or possesses a weapon to or at school, on school premises, or to

or at a school function under the jurisdiction of a State or local educational

agency;

(ii) knowingly possesses or uses illegal drugs, or sells or solicits the sale of

a controlled substance, while at school, on school premises, or at a school

function under the jurisdiction of a State or local educational agency; or

(iii) has inflicted serious bodily injury upon another person while at

school, on school premises, or at a school function under the jurisdiction

of a State or local educational agency.

(H) Notification

Not later than the date on which the decision to take disciplinary action is made,

the local educational agency shall notify the parents of that decision, and of all

procedural safeguards accorded under this section.

(2) Determination of setting

The interim alternative educational setting in subparagraphs (C) and (G) of paragraph (1)

shall be determined by the IEP Team.

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(3) Appeal

(A) In general

The parent of a child with a disability who disagrees with any decision regarding

placement, or the manifestation determination under this subsection, or a local

educational agency that believes that maintaining the current placement of the

child is substantially likely to result in injury to the child or to others, may request

a hearing.

(B)Authority of hearing officer

(i) In general

A hearing officer shall hear, and make a determination regarding, an

appeal requested under subparagraph (A).

(ii) Change of placement order

In making the determination under clause (i), the hearing officer may

order a change in placement of a child with a disability. In such situations,

the hearing officer may—

(I) return a child with a disability to the placement from which the

child was removed; or

(II) order a change in placement of a child with a disability to an

appropriate interim alternative educational setting for not more

than 45 school days if the hearing officer determines that

maintaining the current placement of such child is substantially

likely to result in injury to the child or to others.

(4) Placement during appeals

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When an appeal under paragraph (3) has been requested by either the parent or the local

educational agency—

(A) the child shall remain in the interim alternative educational setting pending the

decision of the hearing officer or until the expiration of the time period provided

for in paragraph (1)(C), whichever occurs first, unless the parent and the State or

local educational agency agree otherwise; and

(B) the State or local educational agency shall arrange for an expedited hearing,

which shall occur within 20 school days of the date the hearing is requested and

shall result in a determination within 10 school days after the hearing

(5) Protections for children not yet eligible for special education and related services

(A) In general

A child who has not been determined to be eligible for special education and

related services under this subchapter and who has engaged in behavior that

violates a code of student conduct, may assert any of the protections provided for

in this subchapter if the local educational agency had knowledge (as determined

in accordance with this paragraph) that the child was a child with a disability

before the behavior that precipitated the disciplinary action occurred.

(B) Basis of knowledge

A local educational agency shall be deemed to have knowledge that a child is a

child with a disability if, before the behavior that precipitated the disciplinary

action occurred—

(i) the parent of the child has expressed concern in writing to supervisory

or administrative personnel of the appropriate educational agency, or a

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teacher of the child, that the child is in need of special education and

related services;

(ii) the parent of the child has requested an evaluation of the child

pursuant to section 1414(a)(1)(B) of this title; or

(iii) the teacher of the child, or other personnel of the local educational

agency, has expressed specific concerns about a pattern of behavior

demonstrated by the child, directly to the director of special education of

such agency or to other supervisory personnel of the agency.

A local educational agency shall not be deemed to have knowledge that the child

is a child with a disability if the parent of the child has not allowed an evaluation

of the child pursuant to section 1414 of this title or has refused services under this

subchapter or the child has been evaluated and it was determined that the child

was not a child with a disability under this subchapter.

(D) Conditions that apply if no basis of knowledge

(i) In general

If a local educational agency does not have knowledge that a child is a

child with a disability (in accordance with subparagraph (B) or (C)) prior

to taking disciplinary measures against the child, the child may be

subjected to disciplinary measures applied to children without disabilities

who engaged in comparable behaviors consistent with clause (ii).

(ii) Limitations

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If a request is made for an evaluation of a child during the time period in

which the child is subjected to disciplinary measures under this

subsection, the evaluation shall be conducted in an expedited manner. If

the child is determined to be a child with a disability, taking into

consideration information from the evaluation conducted by the agency

and information provided by the parents, the agency shall provide special

education and related services in accordance with this subchapter, except

that, pending the results of the evaluation, the child shall remain in the

educational placement determined by school authorities.

(6) Referral to and action by law enforcement and judicial authorities

(A) Rule of construction

Nothing in this subchapter shall be construed to prohibit an agency from reporting a

crime committed by a child with a disability to appropriate authorities or to prevent

State law enforcement and judicial authorities from exercising their responsibilities

with regard to the application of Federal and State law to crimes committed by a child

with a disability.

(B) Transmittal of records

An agency reporting a crime committed by a child with a disability shall ensure that

copies of the special education and disciplinary records of the child are transmitted

for consideration by the appropriate authorities to whom the agency reports the crime.

(7) Definitions

In this subsection:

(A) Controlled substance

165

The term “controlled substance” means a drug or other substance identified under

schedule I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21

U.S.C. 812(c)).

(B) Illegal drug

The term “illegal drug” means a controlled substance but does not include a

controlled substance that is legally possessed or used under the supervision of a

licensed health-care professional or that is legally possessed or used under any other

authority under that Act [21 U.S.C. 801 et seq.] or under any other provision of

Federal law.

The term “weapon” has the meaning given the term “dangerous weapon” under

section 930(g)(2) of title 18.

(D) Serious bodily injury

The term “serious bodily injury” has the meaning given the term “serious bodily

injury” under paragraph (3) of subsection (h) of section 1365 of title 18.

20 U.S.C. § 1412

(a) In general

A State is eligible for assistance under this subchapter for a fiscal year if the State submits a plan

that provides assurances to the Secretary that the State has in effect policies and procedures to

ensure that the State meets each of the following conditions:

(1) Free appropriate public education

(A) In general

166

A free appropriate public education is available to all children with disabilities

residing in the State between the ages of 3 and 21, inclusive, including children

with disabilities who have been suspended or expelled from school.

(B) Limitation

The obligation to make a free appropriate public education available to all

children with disabilities does not apply with respect to children—

(i) aged 3 through 5 and 18 through 21 in a State to the extent that its

application to those children would be inconsistent with State law or

practice, or the order of any court, respecting the provision of public

education to children in those age ranges; and

(ii) aged 18 through 21 to the extent that State law does not require that

special education and related services under this subchapter be provided to

children with disabilities who, in the educational placement prior to their

incarceration in an adult correctional facility—

(I) were not actually identified as being a child with a disability

under section 1401 of this title; or

(II) did not have an individualized education program under this

subchapter.

20 U.S.C. § 1414

(a) Evaluations, parental consent, and reevaluations

(1) Initial evaluations

(A) In general

167

A State educational agency, other State agency, or local educational agency shall

conduct a full and individual initial evaluation in accordance with this paragraph

and subsection (b), before the initial provision of special education and related

services to a child with a disability under this subchapter.

(B) Request for initial evaluation

Consistent with subparagraph (D), either a parent of a child, or a State educational

agency, other State agency, or local educational agency may initiate a request for

an initial evaluation to determine if the child is a child with a disability.

(i) In general

Such initial evaluation shall consist of procedures—

(I) to determine whether a child is a child with a disability (as

defined in 1401 of this title) within 60 days of receiving parental

consent for the evaluation, or, if the State establishes a timeframe

within which the evaluation must be conducted, within such

timeframe; and

(II) to determine the educational needs of such child.

(ii) Exception

The relevant timeframe in clause (i)(I) shall not apply to a local

educational agency if—

(I) a child enrolls in a school served by the local educational

agency after the relevant timeframe in clause (i)(I) has begun and

prior to a determination by the child’s previous local educational

168

agency as to whether the child is a child with a disability (as

defined in section 1401 of this title), but only if the subsequent

local educational agency is making sufficient progress to ensure a

prompt completion of the evaluation, and the parent and

subsequent local educational agency agree to a specific time when

the evaluation will be completed; or

(II) the parent of a child repeatedly fails or refuses to produce the

child for the evaluation.

(D) Parental consent

(i) In general

(I) Consent for initial evaluation

The agency proposing to conduct an initial evaluation to determine

if the child qualifies as a child with a disability as defined in

section 1401 of this title shall obtain informed consent from the

parent of such child before conducting the evaluation. Parental

consent for evaluation shall not be construed as consent for

placement for receipt of special education and related services.

(II) Consent for services

An agency that is responsible for making a free appropriate public

education available to a child with a disability under this

subchapter shall seek to obtain informed consent from the parent of

such child before providing special education and related services

to the child.

169

(ii) Absence of consent

(I) For initial evaluation

If the parent of such child does not provide consent for an initial

evaluation under clause (i)(I), or the parent fails to respond to a

request to provide the consent, the local educational agency may

pursue the initial evaluation of the child by utilizing the procedures

described in section 1415 of this title, except to the extent

inconsistent with State law relating to such parental consent.

(II) For services

If the parent of such child refuses to consent to services under

clause (i)(II), the local educational agency shall not provide special

education and related services to the child by utilizing the

procedures described in section 1415 of this title.

(III) Effect on agency obligations

If the parent of such child refuses to consent to the receipt of

special education and related services, or the parent fails to

respond to a request to provide such consent—

(aa) the local educational agency shall not be considered to

be in violation of the requirement to make available a free

appropriate public education to the child for the failure to

provide such child with the special education and related

services for which the local educational agency requests

such consent; and

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(bb) the local educational agency shall not be required to

convene an IEP meeting or develop an IEP under this

section for the child for the special education and related

services for which the local educational agency requests

such consent.

(iii) Consent for wards of the State

(I) In general

If the child is a ward of the State and is not residing with the

child’s parent, the agency shall make reasonable efforts to obtain

the informed consent from the parent (as defined in section 1401 of

this title) of the child for an initial evaluation to determine whether

the child is a child with a disability.

(II) Exception

The agency shall not be required to obtain informed consent from

the parent of a child for an initial evaluation to determine whether

the child is a child with a disability if—

(aa) despite reasonable efforts to do so, the agency cannot

discover the whereabouts of the parent of the child;

(bb) the rights of the parents of the child have been

terminated in accordance with State law; or

(cc) the rights of the parent to make educational decisions

have been subrogated by a judge in accordance with State

171

law and consent for an initial evaluation has been given by

an individual appointed by the judge to represent the child.

(E) Rule of construction

The screening of a student by a teacher or specialist to determine

appropriate instructional strategies for curriculum implementation shall

not be considered to be an evaluation for eligibility for special education

and related services.

(2) Reevaluations

(A) In general

A local educational agency shall ensure that a reevaluation of each child with a

disability is conducted in accordance with subsections (b) and (c)—

(i) if the local educational agency determines that the educational or

related services needs, including improved academic achievement and

functional performance, of the child warrant a reevaluation; or

(ii) if the child’s parents or teacher requests a reevaluation.

(B) Limitation

A reevaluation conducted under subparagraph (A) shall occur—

(i) not more frequently than once a year, unless the parent and the local

educational agency agree otherwise; and

(ii) at least once every 3 years, unless the parent and the local educational

agency agree that a reevaluation is unnecessary.

(b) Evaluation procedures

(1) Notice

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The local educational agency shall provide notice to the parents of a child with a

disability, in accordance with subsections (b)(3), (b)(4), and (c) of section 1415 of this

title, that describes any evaluation procedures such agency proposes to conduct.

(2) Conduct of evaluation

In conducting the evaluation, the local educational agency shall—

(A) use a variety of assessment tools and strategies to gather relevant functional,

developmental, and academic information, including information provided by the

parent, that may assist in determining—

(i) whether the child is a child with a disability; and

(ii) the content of the child’s individualized education program, including

information related to enabling the child to be involved in and progress in

the general education curriculum, or, for preschool children, to participate

in appropriate activities;

(B) not use any single measure or assessment as the sole criterion for determining

whether a child is a child with a disability or determining an appropriate

educational program for the child; and

cognitive and behavioral factors, in addition to physical or developmental factors.

(3) Additional requirements

Each local educational agency shall ensure that—

(A) assessments and other evaluation materials used to assess a child under this section—

(i) are selected and administered so as not to be discriminatory on a racial

or cultural basis;

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(ii) are provided and administered in the language and form most likely to

yield accurate information on what the child knows and can do

academically, developmentally, and functionally, unless it is not feasible

to so provide or administer;

(iii) are used for purposes for which the assessments or measures are valid

and reliable;

(iv) are administered by trained and knowledgeable personnel; and

(v) are administered in accordance with any instructions provided by the

producer of such assessments;

(B) the child is assessed in all areas of suspected disability;

assists persons in determining the educational needs of the child are provided; and

(D) assessments of children with disabilities who transfer from 1 school district to

another school district in the same academic year are coordinated with such

children’s prior and subsequent schools, as necessary and as expeditiously as

possible, to ensure prompt completion of full evaluations.

(4) Determination of eligibility and educational need

Upon completion of the administration of assessments and other evaluation measures—

(A) the determination of whether the child is a child with a disability as defined in

section 1401(3) of this title and the educational needs of the child shall be made

by a team of qualified professionals and the parent of the child in accordance with

paragraph (5); and

(B) a copy of the evaluation report and the documentation of determination of

eligibility shall be given to the parent.

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(5) Special rule for eligibility determination

In making a determination of eligibility under paragraph (4)(A), a child shall not be

determined to be a child with a disability if the determinant factor for such determination is

(A) lack of appropriate instruction in reading, including in the essential

components of reading instruction (as defined in section 6368(3) of this title, as

such section was in effect on the day before December 10, 2015);

(B) lack of instruction in math; or

(6) Specific learning disabilities

(A) In general

Notwithstanding section 1406(b) of this title, when determining whether a child

has a specific learning disability as defined in section 1401 of this title, a local

educational agency shall not be required to take into consideration whether a child

has a severe discrepancy between achievement and intellectual ability in oral

expression, listening comprehension, written expression, basic reading skill,

reading comprehension, mathematical calculation, or mathematical reasoning.

(B) Additional authority

In determining whether a child has a specific learning disability, a local

educational agency may use a process that determines if the child responds to

scientific, research-based intervention as a part of the evaluation procedures

described in paragraphs (2) and (3)

(1) Review of existing evaluation data

175

As part of an initial evaluation (if appropriate) and as part of any reevaluation under this

section, the IEP Team and other qualified professionals, as appropriate, shall—

(A) review existing evaluation data on the child, including—

(i) evaluations and information provided by the parents of the child;

(ii) current classroom-based, local, or State assessments, and classroom-

based observations; and

(iii) observations by teachers and related services providers; and

(B) on the basis of that review, and input from the child’s parents, identify what

additional data, if any, are needed to determine—

(i) whether the child is a child with a disability as defined in section

1401(3) of this title, and the educational needs of the child, or, in case of a

reevaluation of a child, whether the child continues to have such a

disability and such educational needs;

(ii) the present levels of academic achievement and related developmental

needs of the child;

(iii) whether the child needs special education and related services, or in

the case of a reevaluation of a child, whether the child continues to need

special education and related services; and

(iv) whether any additions or modifications to the special education and

related services are needed to enable the child to meet the measurable

annual goals set out in the individualized education program of the child

and to participate, as appropriate, in the general education curriculum.

(2) Source of data

176

The local educational agency shall administer such assessments and other evaluation

measures as may be needed to produce the data identified by the IEP Team under

paragraph (1)(B).

(3) Parental consent

Each local educational agency shall obtain informed parental consent, in accordance with

subsection (a)(1)(D), prior to conducting any reevaluation of a child with a disability,

except that such informed parental consent need not be obtained if the local educational

agency can demonstrate that it had taken reasonable measures to obtain such consent and

the child’s parent has failed to respond.

(4) Requirements if additional data are not needed

If the IEP Team and other qualified professionals, as appropriate, determine that no

additional data are needed to determine whether the child continues to be a child with a

disability and to determine the child’s educational needs, the local educational agency—

(A) shall notify the child’s parents of—

(i) that determination and the reasons for the determination; and

(ii) the right of such parents to request an assessment to determine whether

the child continues to be a child with a disability and to determine the

child’s educational needs; and

(B) shall not be required to conduct such an assessment unless requested to by the

child’s parents.

(5) Evaluations before change in eligibility

(A) In general

177

Except as provided in subparagraph (B), a local educational agency shall evaluate

a child with a disability in accordance with this section before determining that

the child is no longer a child with a disability.

(B) Exception

(i) In general

The evaluation described in subparagraph (A) shall not be required before the

termination of a child’s eligibility under this subchapter due to graduation

from secondary school with a regular diploma, or due to exceeding the age

eligibility for a free appropriate public education under State law.

(ii) Summary of performance

For a child whose eligibility under this subchapter terminates under

circumstances described in clause (i), a local educational agency shall

provide the child with a summary of the child’s academic achievement

and functional performance, which shall include recommendations on how

to assist the child in meeting the child’s postsecondary goals.

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Appendix B

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §1401(26)

(26) Related services

(A) In general

The term “related services” means transportation, and such developmental, corrective,

and other supportive services (including speech-language pathology and audiology

services, interpreting services, psychological services, physical and occupational therapy,

recreation, including therapeutic recreation, social work services, school nurse services

designed to enable a child with a disability to receive a free appropriate public education

as described in the individualized education program of the child, counseling services,

including rehabilitation counseling, orientation and mobility services, and medical

services, except that such medical services shall be for diagnostic and evaluation

purposes only) as may be required to assist a child with a disability to benefit from

special education, and includes the early identification and assessment of disabling

conditions in children.

(B) Exception

The term does not include a medical device that is surgically implanted, or the

replacement of such device.

183

Appendix C

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §1401(29)

(29) Special education

The term “special education” means specially designed instruction, at no cost to parents, to meet

the unique needs of a child with a disability, including—

(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and

in other settings; and

(B) instruction in physical education

184

Appendix D

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §1401(34)

(34) Transition services

The term “transition services” means a coordinated set of activities for a child with a disability that—

(A) is designed to be within a results-oriented process, that is focused on improving the

academic and functional achievement of the child with a disability to facilitate the child’s

movement from school to post-school activities, including post-secondary education,

vocational education, integrated employment (including supported employment), continuing

and adult education, adult services, independent living, or community participation;

(B) is based on the individual child’s needs, taking into account the child’s strengths,

preferences, and interests; and

employment and other post-school adult living objectives, and, when appropriate,

acquisition of daily living skills and functional vocational evaluation.

185

Appendix E

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §1412(a)(3)

(3) Child find

(A) In general

All children with disabilities residing in the State, including children with disabilities

who are homeless children or are wards of the State and children with disabilities

attending private schools, regardless of the severity of their disabilities, and who are in

need of special education and related services, are identified, located, and evaluated and a

practical method is developed and implemented to determine which children with

disabilities are currently receiving needed special education and related services.

(B) Construction

Nothing in this chapter requires that children be classified by their disability so long as

each child who has a disability listed in section 1401 of this title and who, by reason of

that disability, needs special education and related services is regarded as a child with a

disability under this subchapter.

186

Appendix F

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §1401(1)

(1) Assistive technology device

(A) In general

The term “assistive technology device” means any item, piece of equipment, or product

system, whether acquired commercially off the shelf, modified, or customized, that is

used to increase, maintain, or improve functional capabilities of a child with a disability.

(B) Exception

The term does not include a medical device that is surgically implanted, or the

replacement of such device.

187

Appendix G

Individuals with Disabilities Education Act Amendments of 2004

20 U.S.C. §1401(2)

(2) Assistive technology service

The term “assistive technology service” means any service that directly assists a child with a

disability in the selection, acquisition, or use of an assistive technology device. Such term

includes—

(A) the evaluation of the needs of such child, including a functional evaluation of the

child in the child’s customary environment;

(B) purchasing, leasing, or otherwise providing for the acquisition of assistive technology

devices by such child;

or replacing assistive technology devices;

(D) coordinating and using other therapies, interventions, or services with assistive

technology devices, such as those associated with existing education and rehabilitation

plans and programs;

(E) training or technical assistance for such child, or, where appropriate, the family of

such child; and

(F) training or technical assistance for professionals (including individuals providing

education and rehabilitation services), employers, or other individuals who provide services

to, employ, or are otherwise substantially involved in the major life functions of such child.