In seeking an offset, the defendants point to the "right to special education and related services for children" as mandated by the Federal Individuals with Disabilities Education Act (20 USC § 1400 c).
The purpose of Federal Individuals with Disabilities Education Act is to "provide for the education of all children with disabilities," and "to assess, and assure the effectiveness of, efforts to educate children with disabilities." (20 USC § 1400 d 1 C; 4.) Federal Individuals with Disabilities Education Act specifically provides that the Federal funds "shall be used to pay only the excess costs directly attributable to the education of handicapped children" (20 USC former § 1414 a 2 B i).
In upholding a disabled student's right to a full-time nurse while he is in school, the United States Supreme Court observed in Cedar Rapids Community School Dist. v. Garret F. (526 US 66, 79 1999), that "this case is about whether meaningful access to the public schools will be assured." the physical health and well being of the child were not factors that were considered, only his educational opportunity. the nursing services were only to be provided while the child was in school and the Supreme Court found that they "must be provided if he is to remain in school." (Supra, at 79.)
The New Jersey law which governs and guides the Federal Individuals with Disabilities Education Act program "requires that all school-age children be assured the fullest possible opportunity to develop their intellectual capacities." (NJ Stat Annot § 18A:46-19.1.) This corresponds with the New York law, which sets forth as the criteria "the educational progress and achievement of the child with a handicapping condition and the child's ability to participate in instructional programs in regular education" (Education Law § 4402 1 b 2).
What is actually provided to a child is dependent upon a child study team, which consults with the Board of Education. (NJ Stat Annot § 18A:46-5.) "A dispute sometimes arises about the acceptability of the entire program and placement recommended for the student. Parents are then entitled to request an administrative hearing regarding the referral, classification, evaluation, program or placement of the child NJ Stat Annot § 6:28-2.7. This proceeding is known as a 'due process hearing.'
Prior to requesting such a hearing, either the parent or the board may, with the consent of both parties, request a trained mediator from the state Department of Education, Division of Special Education to conduct a mediation conference. Participation in the mediation is not a prerequisite to a hearing, however NJ Stat Annot § 6:28-2.6." (Simon and Rosenberg, the Substantive and Procedural Aspects of Special Education Litigation, 154 NJ Law 31, 33 July 1993.)
An Administrative Judge will then make a binding decision over the hearing and his or her ruling must be implemented immediately. (See, NJ Admin Code §§ 1:1-18.1, 6:24-1.1 et seq.) the Judge's ruling is based on whether the proposed plan is "suitably tailored to provide the child with a free appropriate education which ... results in the child benefitting educationally from the plan." (M.K. v. Summit Bd. of Educ., 91 NJ Admin 2d 33 1991).
As a result, parents' suggestions could be disregarded if it is concluded that the child is receiving an appropriate education.