As a new board member, it is useful to have an understanding of how special education in New Jersey works. The programs, processes and procedures, which are largely dictated by federal and state law, can be complex and confusing, and providing special education students with appropriate services can consume a large chunk of a school district budget.

Some Background

The Garden State has long been in the forefront of providing special education services to children. In 1911, by an act of the legislature, New Jersey became the first state in the nation to mandate special education classes for the deaf, blind and educationally delayed in public schools. The mandate was later extended to other handicapping conditions.

The services expanded through the years. In the mid-1950s, the state legislature extended special education for “physically handicapped, mentally retarded students, emotionally and socially maladjusted children,” and provided state aid for those services. The laws then required school districts to employ child study teams (including psychologists, social workers, learning disability specialists), and to provide appropriate special education programs either alone or in conjunction with other public or schools.

In 1966, state legislation clarified the responsibility of local districts to identify children who need special education and consolidated the categories of eligibility according to educational need. It also authorized tuition to private schools, expanded services to children in hospitals and residential programs, expanded the range of programs and services, broadened the responsibility of county child study teams and created a state special education advisory council.

Services continued to expand with the passing years. A 1982 state law mandated special education for children with disabilities from birth to age five; the number of preschool handicapped children receiving special education increased from 3,188 in 1983 to 11,928 in 2005.

Federal Involvement

A landmark in special education was reached when, in 1975, President Gerald Ford signed the Education for All Handicapped Children Act, the first federal law that guaranteed that students with disabilities had a right to receive a free, appropriate public education –FAPE – a term still in use today. Interestingly enough, the model for some of the federal legislation was New Jersey’s regulations, as a former New Jersey Department of Education staffer chaired the National Advisory Committee on Special Education in the early 1970s, and brought the state’s ideas to Washington D.C. Later versions of the Education for All Handicapped Children Act were named the Individuals with Disabilities Education Act, or IDEA.

The guiding principle behind IDEA is that education should meet the needs of the child with a disability; it must prepare the child for further education, or to live and work independently. The law requires that education take place in the least restrictive environment; that is, to the greatest extent possible, a special education student should be educated alongside nondisabled students.

IDEA requires evaluation and placement procedures to guard against misclassification; and it requires periodic re-evaluation of students. There are established due process procedures that allow parents and guardians to receive required notices, to review their child’s records and to challenge identification, evaluation and placement decisions.

The law also requires schools to take a student’s disability into account when enforcing discipline.

With the expansion of services, not surprisingly, the number of students and staff involved in special education grew. In the 2012-2013 school year, according to the New Jersey Department of Education, 202,850 students ages 6 through 21 were receiving special education services; another 17,692 children ages 3 to 5 were also receiving special education or related services. That translated to about 15.5 percent of New Jersey students.

What is required of school districts in the area of special education?

Simply put, school districts must provide students with disabilities a free and appropriate public education (FAPE) in the least restrictive environment.

However, deciding what constitutes an appropriate public education in the least restrictive environment for each child can be a complex task. For some children, being in a class that has an aide or being pulled out of a classroom for a few hours of individual help a week can provide the assistance they need. Other children may require a placement in a self-contained classroom or a separate setting, such as a public or private day school or a residential facility.

Parents and school districts may disagree about the services that children should receive. Serious disagreements can lead to mediation or legal action.

Many districts find themselves involved in special education litigation. Typically there is a dispute over whether a child is receiving FAPE, or there is an alleged violation of the IEP – for instance, parents may believe that the proper placement and services are not in place. School board members should seek assurance from their superintendent that the special education staff are following proper procedures and protocals – to minimize the chance that the district will be subject to legal action.

Who is eligible for special education?

Children aged 3 to 21 who are classified are eligible for services. Sometimes new board members don’t realize that preschool disabled children are eligible – and a district’s responsibility may not end until a child is 21 years old.

For individual children, the process begins with a referral – a written request for an evaluation given to the school district when a child is believed to have a disability. Parents, school personnel or agencies concerned with the welfare of students can all request such an evaluation.

Such a request triggers a procedure with firm timelines. The district child study team decides if the child is eligible for services. The team evaluates the child and then, if a child is found to have educational disabilities, it develops the child’s IEP – Individualized Education Program. The IEP is a plan that describes the education program and services that the district is proposing for a child. Parents and guardians are part of the IEP process. Periodically the IEP is revisited, and children are re-evaluated.

According to a 2012 census of New Jersey schoolchildren, 84.7 percent of the students receiving special education services were represented by four categories of disability: learning disabilities (36.9 percent), speech-language impairment (20.6 percent); other health impairments (18.1 percent) and multiple disabilities (9 percent).

Funding for Special Education Programs

As far back as 1911, state aid was established to cover the excess cost of special education, that is, those costs that exceed expenditures for general education. State funding initially covered half the cost of special education. Later, the funding was based on the category of disability.

In 1996, state funding shifted from categorical aid allocated according to program, to a distribution method based on four tiers defined by disability. Additional aid for extraordinary circumstances was added in 1996 and refined by a law enacted in 2002. State funding for speech-language services was built into general education aid because it was such a common service that separate funding was not needed.

Since 2001, special education expenditures have increased faster than state funding. As a result, the percentage of special education costs covered by state aid dropped by about one-quarter. Additionally, the 2010 local levy cap law restricted the ability of school districts to budget for increased local revenue to offset the lack of state aid. Federal aid was initially based on a per pupil reimbursement but changed in the 1990s to a formula that included a base amount, a factor to reflect enrollment growth, and a poverty factor.

When the federal special education law, the Individuals with Disabilities Education Act (IDEA), was first enacted in 1975, the federal government promised to cover 40 percent of the cost of implementing required special education services. However, the amount actually covered by federal funding is less than one-tenth of required special education services.

In 2008, New Jersey enacted a new school funding formula, which made several changes in how the state provides aid for special education. The School Funding Reform Act bases one-third of special education funding – that is, the proportion awarded to districts regardless of wealth – on the average percentage of students that receive special education services statewide, which at the time of the law’s enactment was 14.69 percent. In fact, the number of classified students in an individual district could be far greater. In addition, the formula distributes the other two-thirds of state funding on ability to pay, rather than the number of students served, thereby driving up the local share of special education costs.

Why have special education costs increased, and what can be done to rein in cost increases? In 2007, the NJSBA commissioned a study, “Financing Special Education in New Jersey.” This year-long research project included statistical analysis of state and federal data, independent data collection, and on-site visits to school districts. (The full 225-page report can be accessed at: www.njsba.org/specialeducation/.) The study found that the growth in special education costs, which then totaled $3.3 billion for roughly 240,000 students, could be largely attributed to tuition and transportation for out-of district programs.

According to the 2007 study, the intensity of special education programs had increased over the previous decade, with more students placed in out-of-district autism programs and related services. For local school districts, that trend is critical because, as indicated in the study, 57 percent of special education costs are borne by local property taxpayers. The remainder comes from the state (34 percent) and the federal government (9 percent).

In 2013, NJSBA convened a task force to study ways public schools could control costs while preserving the quality of special education programs and services. In March 2014, the NJSBA Special Education Task Force issued its final report.

Titled “Special Education: A Service, Not a Place,” the report called for statewide efforts to reduce special education classification of children through the consistent use of early intervention strategies, or “multi-tiered frameworks of support.” According to the report, these efforts focus on students’ needs at an early age in general education classrooms. They have proved to be effective in reducing the number of students later classified as requiring special education services.

“Frequency of classification” and “severity of classification” are major trends affecting special education costs since 2007, according to a survey of New Jersey school superintendents and special education directors issued by the task force in the summer of 2013. The responses reflect state-issued data. For example, during the four school years between 2008 and 2012, the number of students receiving special education services increased 4.9 percent, while the total public school enrollment decreased by 1 percent.

The task force report made 20 recommendations that address early intervention, literacy, shared services, changes in state and federal aid, alternative funding, and training of educators and school board members.

The task force report also called for a change in the perception of special education, arguing that public education should not be viewed as two separate systems – general education and special education – but rather as one continuum of instruction, programs, interventions and services that respond to individual student needs.

Task Force Recommendations

The recommendations of the 2014 NJSBA Special Education Task Force Report included several actions that the state should take. We have included summaries of the recommendations below to better acquaint new board members with valuable public policy ideas for providing the best education possible for special education students, with the greatest possible efficiency.

  • Early intervention The state should develop a multi-tiered system of supports, including programs such as Response to Intervention, Intervention and Referral Services and Positive Behavioral Supports, to identify students with learning needs at an early stage and implement strategies. The process should include ongoing assessment and evaluation. Such early intervention in the general education classroom would improve student outcomes and enable schools to avoid over-classifying children as requiring special education, according to the task force. Additionally, the task force found that by controlling classification through educationally-sound strategies, schools could reduce costs.
  • Shared services While many school districts share some special education services, such as transportation, the task force recommends that the New Jersey Department of Education and local school districts explore a voluntary Regionalized Special Education Model/Shared Services Model for special education and related services. For example, regional or county-level child study teams could evaluate students and then turn over the findings to the local school district for implementation. Such a strategy could free up resources locally for classroom-level programs, according to the task force. Another shared services model cited by the task force would involve regional consortia to complete the filing process for federal funding under the Special Education Medicaid Initiative (SEMI). Currently, some districts opt not to file for reimbursement because the potential benefit is outweighed by the cumbersome filing process. As a result, the state does not receive all of the SEMI funding to which it is entitled. A July 2013 report by the State Auditor indicates that New Jersey state government and school districts could receive an additional $10 million in federal funding through full participation in SEMI.
  • Funding The report recommends restructuring state special education aid to support programs that improve student outcomes; ensuring adequate Extraordinary Special Education Cost Aid, which helps fund out-of-district placement for severely disabled pupils; and providing flexibility in the use of federal special education funding so that it could be applied to supplemental literacy and math programs in inclusive settings. The task force cited research showing that when reading improves, classification rates drop. In addition, the report calls for improved auditing processes at the state and local levels to ensure consistent and accurate coding of special education expenditures. The goal, according to the task force, is more accurate expenditure data for special education than is now available.
  • Training In its recommendations on training, the task force addressed teacher preparation programs, professional development for child study teams and other professionals, and programming for board of education members. The state’s teacher preparation programs should focus on the inclusive classroom with training in adapting curriculum, instruction and assessment to meet the needs of all learners. Additionally, child study teams and other educators should receive targeted training on the development and implementation of individual education programs (IEPs) and federal special education requirements. School board member training should address the legal, financial and programmatic aspects of special education, with the goal of improving outcomes. According to the task force, such training would reduce IEP-related conflicts, develop a culture of trust and cooperation among school districts, parents and students, and meet the needs of all students in an inclusive setting.
  • Due process In addition, the task force called for amendment of a 2007 law that places the burden of proof in disputes over individual special education programs on the school district, rather than on the party bringing the complaint. In the task force’s survey, more than 38 percent of respondents cited the need for legislative and regulatory change in the special education adjudication process, with the current placement of the burden of proof on school districts most frequently cited.

The entire text of the report may be accessed at www.njsba.org/specialeducation2014.

The West Orange Board of Education distributes to its board members an article written by the board’s vice president, Laura Lab, who was also a member of the NJSBA Special Education Committee. Lab concludes her article by eloquently providing wise advice for board members anywhere:

“Like any other parent in your district, whether it is the band parent, sport parent, AP parent or uber-PTA mom, the parent of a special needs student needs to know that the board of education consider what their child needs equally to what other students need. Sometimes its appears boards focus on the test scores, showcasing winning sports teams, bursting at the seams with pride in their honor roll and AP students and touting the accomplishments of their thespians, which is wonderful, of course, but can we sit back and say with confidence and no reservations that we are doing as much as we can for our classified students as well?

Obviously there are financial considerations to be considered, but remember the support the classified student receives while in school is creating a skill set that will be the foundation of what they will be able to achieve during their lifetime.”

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