As family lawyers, we often represent clients with special needs children. During our representation, we hear about services our clients have for their children through their school districts. These services include three different plans, namely: Individual Educational Plan (IEP), Section 504 Plans and IR&S (Interventional Referral Services) Action Plan. This article will address what every family lawyer should know about these plans and issues every family lawyer should consider.

Individual Educational Plans

The Individuals with Disabilities Education Act (IDEA), N.J.A.C. 6:14, was created in 1990. This law ensures that all special needs children receive appropriate free public education in the least restrictive environment necessary to meet those students' needs. An IEP provides individualized special education and related services to meet the unique needs of the child.

The IEP identifies specific instruction, goals and objectives for a one-year period. There are two requirements for a child to be eligible for an IEP: (1) the child must have one or more of the 14 learning disabilities listed in IDEA; and (2) the disability must adversely affect the child's educational performance, and the student is in need of special education and related services.

The IEP will set forth the child's present levels of academic and functional performance with annual educational goals for the child and how the school will track those goals. Services a child may receive are special education; related supplementary services such as speech, physical therapy and occupational therapy; and extended school year services (i.e., school during the summer).

An IEP is what parents should seek when their child has a disability (learning, medical, emotional or behavioral) that requires the modification of curriculum and other special education programs, related services and classroom and statewide testing accommodations.

Section 504 Plans

Section 504 is part of the Rehabilitation Act of 1973 that prohibits discrimination based on disability. Section 504 is an anti-discrimination, civil rights statute that requires the needs of students with disabilities to be met as adequately as the needs of the non-disabled student are met. A student has a disability if the student: (1) has a mental or physical impairment that substantially limits one or more major life activity; (2) has a record of such an impairment; or (3) is regarded as having such impairment.

A 504 Plan provides a plan for how the student will have access to learning at school. The plan includes specific accommodations, supports or services for the student, the person(s) who will provide each service and the person(s) responsible for ensuring the plan is implemented. A student's disability does not have to be permanent to have a 504 Plan. For example, if a student breaks his/her leg and is on crutches or in a wheelchair, a 504 Plan will provide that student with accommodations to get in and out of the school and to his/her classroom(s) until the child no longer needs crutches or a wheelchair.

A 504 Plan is what parents should seek when their child has a diagnosed disability and requires classroom and statewide testing accommodations, but the child does not need specially designed educational instruction.

IR&S Action Plans

An IR&S Action Plan is based on the New Jersey Administrative Code which requires all school districts to have an IR&S committee available for students who are struggling with a learning, behavioral or health issue. An IR&S Plan is developed and implemented within the school in order to provide accommodations and support to a student.

Examples of accommodations under an IR&S Action Plan include extended time for tests or assignments, providing a bathroom or snack break, preferential seating, providing study guides, and providing verbal and non-verbal clues to help refocus.

An IR&S Action Plan is what parents should seek when their child needs formal accommodations, but does not have a documented learning, medical, emotional or behavioral disability.

What You Need to Know

When representing a matrimonial client with a child who has one of the plans set forth above, there are important questions to ask and issues that must be considered in a divorce decree. First, which parent will have the education decision-making authority, and which parent will attend the school meetings and advocate on behalf of their child? Under most settlement agreements and court decisions, the parties have joint legal custody of their children and, thus, they have to agree on decisions affecting their child's education. The same is true under the IDEA—parents are given equal decision-making rights and authority, unless a court order or state law provides otherwise.

This, however, is problematic with divorcing parents. Often divorcing parents cannot agree as to educational decisions affecting their child's IEP, 504 or IR&S Plan. When there is a disagreement between divorced parents relating to their special needs child's special education and/or related services or accommodations, it causes a three-way dispute, between the mother, the father, and the school district. If there is a dispute with the school district, the school district will use the disagreement between the parents to their advantage by trying to “divide and conquer” the parents. This ultimately may be detrimental to the parties' child because the child may not receive the services and/or accommodations that he or she is entitled to and needs.

As a result, ideally, one parent should be designated with the authority to make decisions affecting their child's IEP or 504 or IR&S Plan. If neither party wants to give up their right to make these decisions, then language should be included in the divorce decree that provides a mechanism by which disputes will be resolved, such as submitting the issue to a special educational attorney or an educational advocate or a parent coordinator.

Second, if there is a restraining order in place, a school district can prevent the parent with the restraining order against him/her from participating in the meeting if the other parent is present. Therefore, a provision in the divorce decree as to participation by telephone of the parent with the restraining order against them should be considered.

Third, in the event your client's child needs private evaluations, who will pay for them, and which parent selects the evaluator? If there is a disagreement with the school district about classification, services and/or accommodations, private evaluations may be required. Even if this is not a present issue, it should be addressed because plans are reviewed and, with an IEP, a child is reevaluated every three years to determine eligibility and services required, so it could be a potential issue. Also, there are circumstances under which the school district may be required to pay for these private evaluations, which should be considered as well.

Fourth, in the event your client's school district is not complying with your client's child's plan, are the parties going to hire a special educational law attorney, and how is this attorney going to be paid?

Fifth, which parent has the right to obtain their child's educational records under the Family Educational Rights Privacy Act (FERPE) with the school district?

Sixth, is there an out-of-district placement issue? One or both parents may believe that their school district is not providing free and appropriate education and may want their child to be placed in a special education school out of district. If this is the case, how is this private school going to be paid, are the parent(s) seeking reimbursement from the school, and which parent is dealing with the school to obtain reimbursement?

Lastly, which parent can revoke consent to educational services or do both parties need to consent to revoke services? This needs to be provided for in a divorce decree because under IDEA one party can unilaterally revoke consent to services.

In conclusion, when your client has a child with special needs, it is important to obtain a copy of the plan the child has through their school district, review this plan with your client and consider the issues set forth above. Even if there are not any present issues with the plan or disagreement with the parties regarding the plan or services or accommodations provided, the issues set forth above should still be considered to avoid potential issues and litigation in the future.

Jennifer Fortunato is a partner with Einhorn, Harris, Ascher, Barbarito & Frost in Denville, in the Family Law and Education Law Departments. She is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney, since 2002.