To Access Online Services, New Jersey Students With Disabilities Must Promise Not To Sue
Some New Jersey schools have been forcing students with disabilities to sign waivers promising not to sue the district before giving them access to special education services, HuffPost has learned.
A form distributed by districts asks families to “waive and relinquish; fully release and discharge; and indemnify and hold harmless” the school district and all of its employees “from all claims, liabilities, causes of action, costs, expenses, attorneys’ fees, damages, indemnities, and obligations of every kind and nature, in law, equity, or otherwise,” before providing students with the counseling and speech services outlined in their individualized education program, or IEP. (An IEP is the legal document that details the educational services districts are required to provide to a given student with disabilities.)
The form, devised with help from an education law firm, has raised alarms for disability advocates and lawyers, who have taken up the matter with the New Jersey Department of Education. Rebecca Schore, the legal advocacy director at Disability Rights New Jersey, said her organization already has two clients who have been asked to sign the waiver in order to receive counseling and speech support.
“If the parent refuses to sign it, they will absolutely withhold services,” Schore said.
Lawyers say they have not heard of students who do not require special education services being made to sign any such waivers.
Legal liability has become a significant concern of school districts as they transition to distance learning amid widespread school closures due to the coronavirus epidemic. Under the Individuals with Disabilities Education Act ― the sprawling federal law that governs special education ― schools are required to provide disabled students with an education analogous to that of their peers. But many of the services these students receive, whether that’s modified instruction or a full-time one-on-one aid, have proved challenging to provide virtually.
Districts and employees worry that they can be held legally accountable for failing to fulfill a student’s IEP, or if a child gets hurt performing physical or occupational therapy activities without employees’ in-person supervision.
School administration groups have been pushing for Secretary of Education Betsy DeVos to recommend waivers for IDEA provisions. In late March, the coronavirus relief package gave her 30 days to present Congress with a report about whether she thinks districts should be given flexibility in certain areas. The report could come at any minute.
“Federal laws were not written anticipating a global pandemic that has closed a large majority of schools across the country,” wrote the National Association of State Directors of Special Education and the Council of Administrators of Special Education in a March letter to the Department of Education, pushing for general waivers.
But presenting individual families with forms absolving districts and their employees of liability goes one step further on the issue.
“No parents should be asked to give up any rights or claims they may have in exchange for receiving constitutionally required educational services,” said Elizabeth Athos, senior attorney with the Education Law Center.
The form asks parents to sign off on a number of issues. It asks parents to agree not to be present for, or listen in on, or record virtual educational sessions. A recording could be a violation of the New Jersey wiretapping law, says the form ― a claim lawyers take issue with.
It also asks parents to give up their right to press charges for “negligence or negligent acts, for injuries, damage or loss which may occur, including, but not limited to, loss or damage to property, an injury invasion of privacy, disability or death to persons, arising out of, resulting from or in connection with the Services provided above.” The agreement provides indemnity to the district even after the student has become an adult.
The form was devised with the help of Machado Law Group, an education law firm in New Jersey. An attorney at the firm did not respond to HuffPost’s requests for comment on the matter.
An Machado Law Group attorney defended the forms in a letter to the New Jersey Department of Education and the governor’s office in early April, after disability rights groups raised the issue. The letter notes that the firm represents approximately 30 districts across the state of New Jersey and that they have already negotiated several waivers with families.
“This is an unprecedented time, as is the number of online interactions between teachers and students from their respective homes,” says the letter. “These new interactions create novel privacy and functionality questions and concerns for both school districts and parents that require careful consideration of both short-term benefits and long-term consequences.”
It continues, “Waivers are needed to protect our state’s school districts, who are funded entirely by taxpayer money. Waivers will appropriately notify parents to the risks associated with virtual instruction, and allow them to discuss alternate instruction, if not wanting to expose their children to the potential risks.”
Disability rights groups take specific issue with what the waiver means for a student’s ability to receive compensatory services. Under IDEA, if a student has not been afforded their IEP-mandated services through a denial of a free appropriate public education, they should be offered make-up supports. The form says that when schools reopen, districts will evaluate individual students to determine their entitlement to compensatory services.
However, attorneys worry that parents who eventually take issue with the level of compensatory services offered to their children after schools reopen may find themselves in a bind.
“The district will say you need this much and you may not have any recourse to challenge that decision,” said Athos.
The letter from the Machado Law Firm seemed to downplay this risk, saying that “the waivers being sought reflect the need to inform parents of the inherent risks associated with these online services and do not broadly waive their rights to compensatory education and other entitlements.”
In response to questions about the form, the New Jersey Department of Education told HuffPost it has been “actively monitoring this situation to ensure that all students receive the services they need in a safe and comprehensive manner.”
“We reached out to SPAN, the statewide organization that represents families with special needs children, and asked them to direct parents who have complaints to the Department,” New Jersey Department of Education spokesman Michael Yaple told HuffPost in an e-mail.
The form represents one way districts have reckoned with the newfound challenges of educating students with disabilities outside of school buildings. Initially, some districts around the country opted not to provide instruction to any students, for fear they would run afoul of IDEA if they could not provide disabled students with same rigor as their peers. Subsequent guidance from the Department of Education said that districts should not decline to provide instruction or close as a means of addressing equity concerns.
Districts have said they’re especially fearful of facing legal repercussions during a time when their financial belt buckle is likely to tighten amid state budget shortfalls.
However, parents and disability civil rights groups have said this fear is misguided ― that parents understand that virtual services will likely not live up to what’s required in their IEP, and that they fear broad federal waivers could give districts an excuse to not provide basic services to an especially vulnerable group of students.
In New Jersey, attorneys worry that parents will sign the waiver without realizing what they’re giving up.
“We’re talking about accessing essentially basic educational services,” said Athos. “It’s kind of beyond the pale.”
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