On June 3, 2005, the NJ Department of Education issued “Guidance for Implementation of the Individuals with Disabilities Education Improvement Act of 2004.”  The Guidance sets forth which provisions of the New Jersey Special Education Code will remain in effect on July 1, 2005 when IDEA '04 goes into effect, and which will not.  Advocates disagreed with the Department’s guidance regarding certain key provisions.

In written comments to NJDOE, advocates advised that the State regulations regarding special education reevaluations which provide for more frequent reevaluations than does IDEA '04 - must remain in effect unless and until NJDOE amends the state regulations, since IDEA '04 does not supercede the state regulations.  Compliance with a state mandate of more frequent reevaluations perforce assures compliance with a federal mandate of less frequent reevaluations.

ELC and the other advocates also disagreed with NJDOE’s determination that schools may take advantage of the IDEA ’04 provision allowing the removal of students with disabilities to an interim alternative educational setting for up to 45 school days, because the State regulations provide for removal merely for 45 calendar days.  The federal provision regarding removal is permissive, not mandatory, and therefore, the change to 45 school days may not supercede the state provision of 45 calendar days.

Similarly, the advocates protested implementation of IDEA ‘04’s more onerous discipline standard, as well as implementation of IDEA ‘04’s attorney fee provision which allows districts for the first time to collect fees.  These provisions are permissive in nature and therefore may not supercede the current State regulations in these areas.

Prepared: June 30, 2005