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Things I Learned in #SpecialEducation Litigation Part 2

WEINER LAWInsightsEducation LawThings I Learned in #SpecialEducation Litigation Part 2
Client Update: COVID-19 Information

Education Law Wednesday, June 26, 2019

Partner Maggie Miller, Esq. specializes in Special Education Law  in New Jersey.  In the second part of this three part series, Maggie helps navigate Special Education Litigation.

Maggie Miller, Esq., discusses #WhatIlearned in #SpecialEducationLitigation


If your School District offers parents the option to receive notices via e-mail, a parent may opt to receive the following notices electronically:

  • Written notice;
  • Procedural safeguards notice; and
  • Notices related to a due process complaint.

You must provide written notice when the School District:

  • Proposes to initiate or change, or declines to initiate or change the identification, classification, evaluation, educational placement of the student or provision of a free, appropriate public education to the student, or start a new program or change a program.

What must be included in written notice?

  • Written notice must include a full description of the District’s proposed action or parental request being denied;
  • An explanation as to why the proposed action is being taken or why the denied action is not being taken;
  • A description of the items relied on in making the determination: tests, records, classroom observations, reports;
  • That the parent has procedural safeguards and rights under N.J.A.C. 6A:14.

But what happens when the parent responds that, “I never received…”

What is your district policy on electronic notice?  How does your District confirm that a parent has received certain documents whether electronically or hard-copy?  Are there read receipts?  Delivery receipts?  Do you make them sign for an acknowledgement?

Now that you have taken the time and energy to properly draft your notice and make sure it was electronically sent to the appropriate party, you can prepare for the next steps.

Document, Document, Document

To avoid any “he said she said” battles, proof is key!  If its not in writing, it didn’t happen, but be careful about what you put in writing, as it can provide proof on both sides.  Communication logs show how often and how interactions happened.  Make sure they are properly kept and updated in the same format and fashion after each and every exchange.  Any services rendered need to be kept in the same meticulous fashion as service logs.  Forgetting to update these items will create ambiguity.   Ask yourself “Is my document clear and unambiguous?”.  If the answer is yes, we are on the right track.

Signing Documents

For each meeting an attendance sheet is generated.  All team members must sign that sheet.  Did everyone stay the entire time?  If someone left early, is it properly documented?   Do not have anyone sign your name if you are not in attendance.  If the parent has a representative with them, did the representative sign as well?  Make sure you know what you are signing, and read each page that is presented to you.

IEP Accommodations

You, your Team, and the parents have done all of the legwork to get to this point.  Now that you have all the expert professional opinions, it is time to put the accommodation plan in place.  In order to keep things moving forward, there are a couple questions you should ask:

Are the accommodations specific?

The IEP spells out preferential seating.  What does this mean?  Closest to the front?  The door?  The teacher?   Make sure all parties know the meaning of this prior to implementation.

The student is permitted “extra time”.  In what capacity?  Testing?  Homework? Group time?  How much time?  Make sure all educators involved are aware.

Do the accommodations relate to the identified special needs of the student?  Sometimes convenience items can slip into a plan.  Make sure that each item has documented reasoning behind it.  Don’t allow IEP Accommodations to become “cookie-cutter”.

Once implemented, it will fall on the Case Manager to make sure the accommodations being monitored, applied and documented.  If the accommodations are not being used, you must quickly find out why.

  • Are they not being used because the IEP isn’t being implemented?
  • Are they not being used because they don’t work?
  • Are they not being used because the student does not need them?
  • Are they not being used because the student is refusing?
  • Are accommodations that are not being used removed?

About the Author

Maggie concentrates her practice in the areas of education and labor and employment law, including representing boards of education in all special education and tenure and employment matters.

Maggie will advise the board in all phases of Special Education Litigation. From an initial IEP meeting to mediation, due process, and federal appeal, Maggie keeps the Board’s goals and vision at the forefront while understanding budgetary and district confines. Whatever the Board’s goal, Maggie will fight to attain it.

She also represents public entities in all labor-related matters, including arbitrations, unfair practice proceedings and disciplinary and termination appeals before the Civil Service Commission and other state agencies, including the Department of Education, Public Employment Relations Commission, and Division on Civil Rights.