• Foreward
• Acknowledgements
• An Overview of the Americans with Disabilities Act
• Architectural Barriers
• Commitments
• Education: Early Intervention Services
• Education: Special Services
• Education: Post-Secondary Level
• Estate Planning
• Housing
• Medicaid
• Medicare
• Social Security
• Surrogate Decisionmaking and Guardianship
• Transportation Barriers
• Vocational Rehabilitation
• Workers' Compensation
• Workplace
• Zoning

The New Jersey State Bar Foundation, the Essex County Bar Association and its Committee on the Rights of Persons with Disabilities, are pleased to offer Disability Law: A Legal Primer (Fifth Edition) as a free public education service.

The information in this booklet is presented to help explain laws concerning persons with disabilities. It does not constitute legal advice, which can only be given by an attorney. The booklet is based upon laws in effect as of June 30, 2006.

This is the fifth edition of Disability Law: A Legal Primer prepared by the Committee on the Rights of Persons with Disabilities of the Essex County Bar Association. The primer has been revised and expanded in the hope that it will continue to be a helpful and educational resource.

Copies of Disability Law: A Legal Primer (Fifth Edition) may be ordered online through the New Jersey State Bar Foundation's website or by calling 1-800 FREE LAW. Copies of the primer are also available for download through the Foundation's website (www.njsbf.org) in both HTML and PDF formats. Copies may also be obtained by writing to the New Jersey State Bar Foundation, One Constitution Square, New Brunswick, NJ 08901.

Disability Law: A Legal Primer (Fifth Edition) was made possible by funding from the IOLTA Fund of the Bar of New Jersey.

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Acknowledgements

This primer was prepared by the Essex County Bar Association Committee on the Rights of Persons with Disabilities and funded by the New Jersey State Bar Foundation. Special thanks to H. Kit Ellenbogen, Esq. and Alma L. Yee, Esq., both of whom coordinated and edited this edition. Thanks also to MichaelAnn Knotts, Esq. and Mary Galioto, Esq. for their work in editing portions of this publication and to Ruth Lowenkron, Esq. for her help in coordinating this project. Finally, we extend our gratitude to all of the legal experts, whose names appear at the end of each section, for their contribution of time and knowledge in updating the primer for this fifth edition.

The Essex County Bar Association Committee on the Rights of Persons with Disabilities

Edward Barocas

Norma Davis

H. Kit Ellenbogen

Jeffrey Kuschner, Chair

MichaelAnn Knotts

Ruth Lowenkron*

Michael Wojcik*

Alma Yee

* denotes past committee chair
º ex officio

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The Americans with Disabilities Act (ADA), 42 U.S.C. 12101, et seq., signed into law on July 26, 1990, is landmark civil rights legislation that grants broad civil rights protection by prohibiting discrimination on the basis of disability in the areas of employment (Title I), public service and transportation (Title II), public accommodations (Title III) and telecommunications (Title IV). Almost all provisions of the ADA are currently in force. The phase-in of some provisions extends to the year 2010, the date by which existing inter-city rail stations must be accessible.

To be included under protections of the Americans with Disabilities Act a person must have a disability, or have a relationship or association with an individual with a disability. An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all included impairments. The ADA, however, does not consider current drug or alcohol abuse, gambling, homosexuality, bisexuality or kleptomania as disabilities.

Title I requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others, including recruitment, hiring, promotions, training, pay, social activities and termination. (This issue is discussed further in the Workplace section of this booklet.)

The transportation provisions of the Americans with Disabilities Act, Title II, cover all public transportation services, such as buses, rail transit, subways, commuter rails and Amtrak. Public transportation authorities may not discriminate against people with disabilities in the provision of their services. Compliance with ADA requirements for accessibility must be made in newly purchased vehicles and good faith efforts must be made to purchase or lease accessible used buses, re-manufacture buses in an accessible manner, and provide para-transit where a fixed-route bus or rail system is operated. Para-transit is a service where individuals who are unable to use regular transit systems independently because of a physical or mental impairment are picked up and dropped off at their destinations. All new bus and rail stations must be accessible. When altering primary function areas, accessible routes must be provided if the costs of doing so are not disproportionate to the overall cost of alterations. (This issue is discussed further in the Transportation section of this booklet.)

The Americans with Disabilities Act prohibits discrimination against persons with disabilities by public entities, which are defined as state and local government entities and any of their instrumentalities. Public entities may not exclude persons with disabilities, treat them differently than non-disabled persons, impose criteria that tend to screen them out, make unnecessary inquiries into the existence of a disability or retaliate against any person with a disability who attempts to enforce his or her ADA rights. Public entities must make reasonable modifications in policies and provide auxiliary aids and services to persons with disabilities. Public entities, unlike public accommodations, are not obligated to remove architectural barriers so long as their programs, as a whole, are accessible to persons with disabilities.

The Americans with Disabilities Act prohibits exclusion, segregation and unequal treatment of persons with disabilities in places of public accommodation. Places of public accommodation are non-government entities, which are open to the public. They include privately operated transportation, commercial facilities and entities which own, lease, lease to, or operate facilities such as restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors' offices, homeless shelters, zoos, funeral homes, daycare centers, sports stadiums and fitness clubs. Public accommodations must also comply with specific requirements related to architectural standards for new and altered buildings and remove barriers in existing buildings where it is easy to do so without much difficulty or expense, given the public accommodation's resources. (This issue is discussed further in the Architectural Barriers section of this booklet.)

Effective communication for people with hearing, vision or speech disabilities must also be available. Transportation services provided by private entities are also covered. In addition, courses and examinations related to professional, educational or trade-related applications, licensing, certification or credentialing must be provided in a place and manner accessible to people with disabilities.

How does the ADA affect telecommunications?

Federal Communications Commission (FCC) regulations require that Americans with Disabilities Act-related telecommunications services be provided by common carriers (telephone companies). Services are geared toward enhanced telecommunications for persons with hearing and speech impediments, but the ADA includes a requirement that federally funded public service announcements be closed-captioned for persons with hearing impairments. The FCC has set minimum standards for telecommunications relay services.

In Olmstead v. L.C., 526 U.S. 1037 (1999), the United States Supreme Court confirmed the ADA's community integration mandate, and required that states provide community-based housing and support services for persons with significant disabilities. New Jersey responded to Olmstead with its "Redirection" mental health initiative, which has led to the community placement of many people who were inappropriately housed in psychiatric hospitals. The Olmstead mandate also applies to persons with physical disabilities. Olmstead complaints can be filed with the U.S. Department of Health and Human Services' Office for Civil Rights.

Employment complaints must be filed with the U.S. Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination, or 300 days if the charge is filed with a designated state or local fair employment practice agency. Individuals may file a lawsuit in federal court only after they receive a "right to sue" letter from the EEOC. Charges of employment discrimination on the basis of disability may be filed at any EEOC field office. Listings for EEOC field offices may be found in most telephone directories under "U.S. Government." Complaints of public service and public accommodation violations may be filed with the U.S. Department of Justice within 180 days of the date of discrimination. Complaints against public services and public accommodations may also be filed in federal court. Telecommunications complaints may be filed with the FCC.

Lois Krieger, Esq.
Community Health Law Project
(Fifth Edition)

Beth A. Callahan, Esq. and Ellen Kramer, Esq.
(Prior Edition)

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Architectural barriers are physical barriers in buildings, parks, transportation services or elsewhere that make access by people with disabilities difficult, if not impossible.

Yes. The ADA provides for the removal of architectural barriers in all public accommodations where such removal is "readily achievable." If removal is not "readily achievable," alternative methods of providing the services must be offered. Also, an alteration or renovation of the primary function area in a building must be made accessible. New construction must be accessible; however, elevators are generally not required in buildings under three stories or with less than 3,000 square feet per floor, unless the building is a shopping center, transportation terminal or the office of a healthcare provider.

As long as public services otherwise make their programs accessible to persons with disabilities, they may not be required to remove architectural barriers. State and local governments must prepare a transition plan to ensure that individuals with disabilities are not excluded from services, programs or activities because a building is inaccessible. This includes plans for the installation of curb cuts and ramps.

Yes. Pursuant to the Internal Revenue Code, 26 U.S.C. 190, the cost of removing existing architectural and transportation barriers may be fully deducted by businesses, up to a maximum of $15,000 for each taxable year. This includes removal of such existing barriers as steps, narrow doorways and inaccessible parking spaces. However, comprehensive renovations or normal replacement of depreciable property are not deductible under this act.

Under the Internal Revenue Code, a "small business" may take a general business credit of up to $5,000 for expenditures made after November 5, 1990, to comply with the ADA. Included are costs related to removing architectural, communication and transportation barriers; providing interpreters, readers or similar services; and modifying or acquiring equipment or material. Under Title 26, Section 44, a disabled access credit may be taken by an "eligible small business" in an amount equal to 50 percent of the eligible access expenditures for the taxable year, which exceed $250 but are less than $10,250.

The Architectural Barriers Act (ABA), 40 U.S.C. §451, et seq. and the Fair Housing Amendments Act (FHAA), 42 U.S.C. §601, et seq. also cover architectural barriers.

The ABA provides that certain buildings constructed with federal funds must be designed and constructed to be accessible to persons with disabilities. Generally, when a public building is financed by the federal government, or may be the place of employment or residence of a person with a disability, it must be accessible.

The FHAA prohibits discriminatory practices in the sale and rental of housing and in the design and construction of certain dwellings, such as multi-family dwellings covered by the act. (This issue is discussed further in the Housing section of this booklet.)

Under New Jersey's Barrier-Free Code, N.J.S.A. 52:32-4, and New Jersey's Barrier-Free Sub-Code, N.J.A.C. 5:23-7.1, et seq., all "public buildings" constructed or substantially remodeled since 1977 must be made accessible. "Public buildings" are those used by the general public, even if built or owned by a private person, partnership or corporation. These include residential buildings with four or more dwelling units, hotels, motels, office buildings and other business establishments, restaurants and shopping centers, theaters, concert halls, museums and libraries, recreational facilities, public transportation terminals and stations and auto service stations.

The Barrier-Free Code sets out accessibility standards for walkways, parking lot spaces, ramps, entrances, doors, corridors, stairs, floors, elevators, wheelchair lifts, public toilet rooms, water fountains, public telephones and warning signals.

Yes. Some buildings that are exempt from the barrier-free requirements are one-, two-, and three-family residences; warehouse storage areas; and all buildings used for hazardous activities. Residential townhouses (generally two- or more-story residential units) are also exempt. However townhouse units in buildings with elevators are subject to the architectural barrier codes.

In some cases, when such buildings are remodeled, the law requires that they be accessible. For example, when remodeling entrances, stairs, elevators, or public toilet rooms in a public building, these areas must be changed to provide access according to the code. If substantial repairs or alterations are made to a public building constructed before 1977, all or part of the building may have to be made barrier-free.

Most municipalities have a designated building code official to enforce the accessibility regulations. The New Jersey Department of Community Affairs is the enforcing agency for the state. Violations of the code should be reported to the enforcing agencies, and the decisions of the enforcing agencies may be appealed through the state courts.

In December 2004, the Council on Affordable Housing, the agency responsible for administering New Jersey's Fair Housing Act, adopted new regulations, including N.J.A.C. 5:94-4.21 (a), requiring that 10 percent of all affordable townhouse units proposed in a municipality's fair share plan be accessible to persons with disabilities.

The Americans with Disabilities Act covers voting place accessibility for state and local elections. Additionally, under the Voting Accessibility for the Elderly and Handicapped Act of 1984, 42 U.S.C. 197ee, et seq., each political subdivision responsible for conducting elections must assure that polling places for federal elections are accessible to voters who are elderly or who have a disability, except in an emergency or when the state's chief election officer determines that no such place is available within the election district and there is no substitute method of voting available, such as transferring the voter to an accessible site. The statute requires that the U.S. attorney general prepare an annual report regarding accessibility. All sites were required to comply by 1992. A person denied access due to disability or the U.S. attorney general may file a lawsuit in the appropriate federal district court regarding inaccessible polling places.

David Popiel, Esq. and Lois Krieger, Esq.
Community Health Law Project
(Fifth Edition)

Cecelia Urban, Esq., Beth A. Callahan, Esq., and Ellen Kramer, Esq.
(Prior Edition)

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Yes. A person can be involuntarily committed to a psychiatric hospital if a court determines the following: the person has a mental illness; the mental illness causes the person to be dangerous to self, others or property; appropriate services are not available in the community; and the person is not willing to be admitted voluntarily. N.J.S.A. 30:4-27.2.

Mental illness is defined as "a current substantial disturbance of thought, mood, perception or orientation which significantly impairs judgment, capacity to control behavior or capacity to recognize reality." Mental illness does not include simple alcohol intoxication, transitory reaction to drug ingestion, organic brain syndrome or developmental disability unless it results in the severity of impairment defined above. The term mental illness is not limited to psychosis. N.J.S.A. 30:4-27.2(r).

"Dangerous to self" means that "by reason of mental illness, the person has threatened or attempted suicide or serious bodily harm, or has behaved in such a manner as to indicate that the person is unable to satisfy his or her need for nourishment, essential medical care or shelter, so that it is probable that substantial bodily injury, serious physical debilitation or death will result within the reasonably foreseeable future; however, no person shall be deemed to be unable to satisfy the need for nourishment, essential medical care or shelter if he is able to satisfy such needs with the supervision and assistance of others who are willing and available." N.J.S.A. 30:4-27.2(h).

"Dangerous to others or property" means that "by reason of mental illness there is a substantial likelihood that the person will inflict serious bodily harm upon another person or cause serious property damage within the reasonably foreseeable future. This determination shall take into account a person's history, recent behavior and any recent act or threat." N.J.S.A. 30:4-27.2(i).

Yes. Court rules define "childhood mental illness" as "a current substantial disturbance of thought, mood, perception, or orientation which differs from that which is typical of children of a similar developmental stage, and which significantly impairs judgment, behavior, or capacity to recognize reality when also compared with children of a similar developmental stage." The adult definitions of dangerousness described above also apply to minors, except that for minors under 14 years of age "dangerous to self" also means that "there is a substantial likelihood that the failure to provide immediate, intensive, institutional, psychiatric therapy will create in the reasonably foreseeable future a genuine risk of irreversible or significant harm to the child arising from the interference with or arrest of the child's growth and development and, ultimately, the child's capacity to adapt and socialize as an adult." In addition, a parent, with independent approval by a physician, may hospitalize his or her child for up to seven days for evaluation or a diagnosis of a childhood mental illness, without judicial approval. A minor over 14 years of age can also be admitted as a voluntary patient on his or her own, with prior court approval. New Jersey Court Rules 4:74-7A.

Yes. A person can be admitted as a voluntary patient if the person has a mental illness; if the person presents a danger to self, others, or property, or the person's mental illness presents a substantial likelihood of rapid deterioration; and appropriate community services are not available in the community. N.J.S.A. 30:4-27.2(ee).

No. A voluntary patient may request discharge at any time; however, the hospital may hold the patient for a short time to allow for an orderly discharge or to begin the involuntary commitment process. The hospital cannot detain a voluntary patient beyond 48 hours or the end of the next working day (whichever is longer), unless a court has issued a temporary order of involuntary commitment. N.J.S.A. 30:4-27.20.

A person can be involuntarily detained at a screening center for up to 24 hours while being evaluated, and can then be detained at a psychiatric hospital for up to 72 hours while court proceedings for involuntary commitment are being initiated. N.J.S.A. 30:4-27.5(a) and -27.9(c)

A screening center is a public or private ambulatory care center located in a hospital or a mental health center designated by the commissioner of the Department of Human Services (DHS). The screening centers provide mental health services including assessments and emergency and referral services for persons with mental illness. The location of county mental health screening centers can be found by calling the appropriate Division of Mental Health Services Regional Office for the Northern Region, 973-977-4397; for the Central Region, 609-777-0674; and for the Southern Region, 609-567-7352.

If an individual is unable or unwilling to come to the screening center, mental health screeners will make outreach visits. N.J.S.A. 30:4-27.5(d). A law enforcement officer may take an individual to a screening center if there is reasonable cause to believe that the person is in need of involuntary commitment. N.J.S.A. 30:4-27.6.

At the screening center, a mental health screener, who is customarily a social worker, will determine if a person needs to be involuntarily committed to a psychiatric hospital. If the screener determines that the person needs involuntary commitment, a psychiatrist will evaluate him or her. If the psychiatrist agrees that the person is in need of involuntary commitment, the psychiatrist will complete a screening certificate that will be submitted to the court.

If the mental health screener determines that the person does not need involuntary commitment, the individual will be referred to an appropriate community mental health or social service agency, mental health professional or hospital. N.J.S.A. 30:4-27.5(b) and (c).

A psychiatric hospital may begin court proceedings for involuntary commitment by submitting clinical certificates completed by two psychiatrists. The court reviews these documents and, if probable cause for involuntary commitment exists, a temporary order for commitment is entered. The person will then be admitted to an appropriate facility as soon as possible. A hearing will be held on the person's need for involuntary commitment within 20 days of the person's admission. N.J.S.A. 30:4-27.10 and -27.12.

The state must prove that a person needs involuntary commitment and would present a danger to self, others or property, by clear and convincing evidence. If this cannot be shown, the patient must be discharged within 48 hours of the court's verbal order, or by the end of the next working day (whichever is longer). If the court finds that the person is in need of involuntary commitment, periodic review hearings will be scheduled to determine whether the person continues to need involuntary commitment. N.J.S.A. 30:4-27.12 and -27.16.

Persons who are being involuntarily committed to a psychiatric hospital have a number of rights, including:

1. the right to receive a verbal explanation of the reasons for admission to the hospital;
2. the right to receive a copy of the temporary order of commitment and the screening certificates submitted to the court;
3. the right to have an attorney represent them at their commitment hearing;
4. the right to a private commitment hearing;
5. the right to be present at their hearing, to present evidence and to cross examine witnesses; and,
6. the right to have services provided in the patient's primary means of communication, including use of an interpreter.

N.J.S.A. 30:4-27.11, -27.13(a) and -27.14.

Do patients at screening centers and psychiatric hospitals have any other rights?

Yes. The New Jersey Patients' Bill of Rights guarantees that a patient shall not be deprived of any legal or civil right solely because he or she has received assessment or treatment for a mental illness. N.J.S.A. 30:4-27.11(c) and -24.2(a). In addition, the Bill of Rights guarantees to all patients the following:

1. the right to be free from unnecessary or excessive medication;
2. the right to be free from unnecessary physical restraint, seclusion and punishment;
3. the right to privacy and dignity;
4. the right to be confined in the least restrictive conditions necessary to achieve the purposes of treatment;
5. the right to receive visitors and to have reasonable access to telephone and writing material;
6. the right to regular physical exercise and opportunities to be outdoors;
7. the right to receive prompt and adequate medical treatment for physical ailments; and,
8. the right to practice the religion of one's choice, or to refrain from religious practices.

Some of these rights can be denied if the treating psychiatrist feels that it is imperative to do so, and the patient and his or her attorney have been provided with a written explanation of the reason for the denial. N.J.S.A. 30:4-24.2, -27.11d and -27.11e.

If a patient thinks that his or her rights may have been violated in connection with admission to, or treatment at a psychiatric hospital, or if a patient has a question about his or her rights, the patient should talk to the attorney who has been assigned to represent him or her at the commitment hearing or to New Jersey Protection and Advocacy, Inc. at 800-922-7233 (voice), or 609-633-7106 (TDD).

Joseph T. Connolly Esq., James W. Drake Jr., and Lorraine M. Gormley, Esq.
(Prior Editions)

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The Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C.1400, et seq. Part C, governs early intervention services. The New Jersey State Department of Health and Senior Services is responsible for administering the program.

Early intervention services (EIS) are available for all children from birth to age three who have developmental delays or a physical or mental disability that is highly likely to result in a developmental delay. Common developmental areas include, but are not limited to, communication, feeding, behavior, walking/movement, vision and hearing.

Doctors and hospital personnel usually make the initial identification. However, parents, daycare workers, social service agencies, etc. may make the initial identification. Identification is made by contacting the Case Management Unit of the Special Child Health Services Office in the county of the child's residence, or by calling 1-800-322-8174.

Within 45 days of identification, a service coordinator will review the child's medical records and arrange for the child to have a multidisciplinary assessment to determine the child's level of functioning. This evaluation will determine if the child is eligible for EIS.

The service coordinator, together with the parents and professionals who conducted the evaluations, will develop a written individualized family service plan (IFSP) detailing the services, providers and goals for the individual child. The parent(s) can accept or reject each service offered. Parent(s) can only accept services by written consent.

Every six months, the service coordinator must meet with the parent(s) to review the child's progress and amend the IFSP as needed. The IFSP is reviewed every six months; the child must be re-evaluated every year.

On a child's third birthday, responsibility for providing services passes to the Department of Education through the school district of residence. To assure a smooth transition of services, parents should contact, in writing, the school district no fewer than 90 days and nor more than nine months prior to the child's third birthday to request evaluation for eligibility for special education.

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Special education in New Jersey is governed by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400, et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794; New Jersey's special education statute, N.J.S.A. 18A:46-1, et seq.; and New Jersey's special education regulations, N.J.A.C. 6A:14-1.1, et seq.

Section 504 of the Rehabilitation Act of 1974 is an anti-discrimination law, not an education law. Section 504 applies to anyone who can show that he or she: (1) has an impairment that substantially limits a major life activity (like learning), has a history of such an impairment or is regarded as having such an impairment, and (2) is being discriminated against by any program or activity receiving federal funds (like a public school or a public library). While students with disabilities are entitled to education and related services under the Individuals with Disabilities Education Act (IDEA), the coverage under Section 504 is broader. A larger group of students may be covered under Section 504, because "disability" is defined broadly, unlike IDEA's list of qualifying disabilities. Section 504 also covers children who may require only "related" services, which can be viewed as accommodations and/or modifications, rather than special education.

Although the coverage is broader, the services under Section 504 are often more limited than those required by IDEA. Under Section 504, schools are only required to make sure that the student with a disability is getting the services that level the playing field in relation to non-disabled children in the same situation. Thus, a child with a disability would only be entitled to preschool services under Section 504 if the district offers regular preschool services to all children. Preschool age children who qualify under IDEA must receive preschool special services, regardless of the existence of regular preschool programs.

Every child in New Jersey from his or her third birthday until high school graduation or age 21 (whichever comes first), who is found to have a disability, is entitled to a free, appropriate public education. Education for these children must be provided in the least restrictive environment. Supplementary aids and services must be implemented to ensure that, to the greatest extent possible, children with educational disabilities participate in the same programs, both academic and extracurricular, as children with no disabilities.

In conformance with Part C of the Individuals with Disabilities Education Act (IDEA), the New Jersey State Department of Health and Senior Services provides early intervention services for children with disabilities or developmental delays from birth up to their third birthday. There is a single point of entry for this program in each county: the Special Child Health Services Case Management Unit. (See the Early Intervention section of this booklet.)

Each school district is required to evaluate any child when there is reason to believe the child may have a disability that may affect his or her ability to learn. The district must notify the child's parent(s) that an evaluation is planned, and state the reason for the evaluation. A parent may also request, in writing, an evaluation. Written consent of the child's parent is required for all evaluations. The initial evaluation includes professional observation and testing of the child to determine whether there is a need for special education and related services. In addition to basic testing, other evaluations may be required to complete identifying the child's needs. There is no cost to the parent(s) for any/all evaluations conducted.

After the written evaluation referral from the parent, the school child study team (CST), comprised of a school psychologist, a learning disability teacher-consultant (LDTC), a school social worker, and sometimes a speech/language specialist, meets with the parent(s) to determine if the child needs an evaluation for a possible disability. If an evaluation is agreed upon, the CST and parent(s) determine the nature of the evaluation. There must be at least two areas of suspected disability tested. Usually there is a psychological and learning evaluation conducted. However, parents can also request additional testing, such as: speech/language, audiological, neurological, psychiatric, etc. All test results must be provided to the parent(s) at least 10 days prior to the meeting, which will determine whether the child is eligible to be classified as needing special education and related services. If the child is so classified, a meeting will be scheduled with the individual education program (IEP) team to formulate a program and placement that will meet the established needs.

According to IDEA, an IEP team, composed of the child's parent(s); at least one special education teacher; one of the child's regular education teachers; a representative of the local district who is qualified to provide or supervise specially designed instruction and is knowledgeable about the general curriculum and the availability of resources; an individual who can interpret the instructional implications of evaluation results; other individuals who may have evaluated the child; the case manager, and, when appropriate, the child, will meet after classification has been established. This IEP team determines what program and services the child needs. Special education is available to children who require services as a result of cognitive impairment, hearing impairments, speech and language impairments, visual impairments, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments or specific learning disabilities.

The individual education program, which is developed by the IEP team for each eligible student, is the cornerstone of the child's right to services. The IEP specifies the programs, placement and services the child will receive. It also includes a description of the child's current educational status, and a statement of objectives for the child's education that describes specific, measurable steps between a child's current status and ultimate goals. The IEP may also specify needed related services to which the child is entitled, including, but not limited to, transportation, occupational therapy, physical therapy, speech therapy and/or counseling.

Many options are available, depending upon the nature and severity of the child's disability and his or her educational needs. These options may include instruction in the regular school classroom that may be complemented with supports and/or services or replaced in part by special or supplemental instruction; full-time assignment to a special class in the local school district or in a neighboring school district; assignment to an educational program in a medical facility; vocational or technical classes; placement in an approved private school for students with severe disabilities that may be located inside or outside of New Jersey; placement in an approved residential school; or, as a last resort, individualized home instruction on a temporary basis or in the case of physically fragile children. The placement must be appropriate and in the least restrictive environment in order to minimize the child's isolation from the rest of the school population.

Inclusion is a term commonly used to indicate the implementation of an IEP in a regular class in the local school district, with whatever supports and aids the child with a disability may need to receive an appropriate education. It is nothing more than the mandated appropriate public education in the least restrictive environment, as stated in both federal and state law.

Sometimes. The High School Proficiency Assessment (HSPA), now required for the award of a high school diploma in New Jersey, may be modified or waived entirely for a child with severe disabilities. However, such modification must be specifically provided for in the child's IEP. The IEP must specify the skills and goals the child must attain to take the place of the HSPA and/or other state and local graduation requirements. A child who successfully completes his or her IEP graduation requirements will receive a high school diploma.

When a student with a disability transfers to a New Jersey school district, that district's child study team must conduct an immediate review of the evaluation information and the IEP. The child's IEP will be implemented as written unless there is disagreement on the part of the child study team or the parent(s). In that case, services will be provided pursuant to an interim IEP that is consistent with the current IEP, and supplemental evaluations may be required. Should the records from the previous school be incomplete or unavailable, the student must receive services consistent with the available information. The district must then complete evaluations, develop a new IEP and implement an appropriate placement without delay.

An adult student or a minor child's parent(s) can request an independent outside evaluation, at no cost to the parent. This evaluation must be reviewed by the local CST but does not have to be accepted. In addition, either of the parties can request either mediation or a due process hearing. The school district may also initiate either process.

Mediation is an attempt to resolve a dispute informally, with a state Department of Special Education mediator who facilitates discussion between the parent(s) and the school district. Either party may request mediation, specifying the issue(s) in dispute and the relief sought, by writing to the Director, Office of Special Education Programs, Department of Education, P.O. Box 500, Trenton, N.J. 08625-0500. A copy of that request must be sent to the opposing party who must be willing to enter into mediation. A form for requesting mediation, while not required, is available from the Department of Education. The parties may or may not resolve the issues. The mediator cannot force resolution.

In New Jersey, a due process hearing is a formal hearing before an administrative law judge (ALJ) in the Office of Administrative Law (OAL). The parent, adult student or the school district may request a due process hearing by writing to the Director, Office of Special Education Programs, Department Education, with a copy to the opposing party. A form for requesting a hearing, while not required, is available from the Department of Education. Within seven days of receipt of the request, the Department of Education will schedule a conference. At this conference, the issue(s) will be defined and the possibility of settlement through mediation may be initiated. If the matter cannot be resolved, it will be transmitted to the OAL for a hearing two weeks thereafter. The parties will be asked to state what evidence and what witnesses they intend to produce at the hearing. The ALJ has 45 days from the day of filing to reach a decision, which is final.

Yes. Emergency relief can be requested in writing at the same time that a hearing is requested, or anytime thereafter, from the Office of Administrative Law. The request must be supported by an affidavit detailing the emergency relief requested and why emergency relief is needed. The probability of irreparable harm to the child's education must be demonstrated. A copy of the request and accompanying affidavit must be provided to the opposing party.

The decision of the ALJ, reached within 45 days of the hearing request, may be appealed in state or federal court. However, the decision will be implemented immediately, unless the judge grants a stay, which would delay implementation of the decision until the appeal is resolved.

Adults with disabilities are eligible for certain accommodations pursuant to Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD).

Title II of the ADA covers state-funded schools such as universities, community colleges and vocational schools. Title III of the ADA covers private colleges and vocational schools. If a school receives federal dollars, regardless of whether it is private or public, it is also covered by the regulations of Section 504 of the Rehabilitation Act requiring schools to make their programs accessible to qualified students with disabilities.

The post-secondary program cannot have eligibility requirements that screen out people with physical or mental disabilities. Application forms cannot ask applicants if they have a history of mental illness or any other disability. Institutions may impose criteria that relate to safety risks, but these criteria must be based on actual risk and not on stereotypes or assumptions.

It depends on the post-secondary program to which the student is applying. Where SATs and entrance exams are required, applicants with disabilities must be prepared to take them. However, every college, university and other entity administering tests is required to adapt the testing procedure to accommodate applicants with disabilities. Therefore, it is necessary to call ahead and make the appropriate arrangements. The Educational Testing Service in Princeton must be contacted to make these arrangements with respect to the SAT or other College Board-sponsored tests.

Absolutely. While a college or university must provide "reasonable accommodations" to students with disabilities, they are not required to waive or modify academic standards.

Absolutely. While a college or university must provide "reasonable accommodations" to students with disabilities, they are not required to waive or modify academic standards.

Qualified interpreters, assistive listening systems, captioning, TTYs, qualified readers, audio recordings, taped texts, Braille materials, materials on computer disk and adapted computer terminals are examples of auxiliary aids and services that provide effective communication.

The most challenging aspect of modifying classroom policies and practices for students with disabilities is that it requires thought and some prior preparation. The difficulty lies in the need to anticipate needs and be prepared in advance. The actual modifications themselves are rarely substantive or expensive. Some examples are rescheduling classes to an accessible location; providing students with disabilities with a syllabus prior to the beginning of class; clearly communicating course requirements, outlines or summaries of class lectures, or integrating this information into comments at the beginning or end of the class; and allowing students to use note-takers or tape record lectures. Modifications will always vary based on the individual student's needs. Modifications of policies and practices are not required when it would fundamentally alter the nature of the service, program, or activity.

No.

Schools may request current documentation of a hidden disability, such as learning disabilities or chronic health impairment. For a person with an obvious physical disability, blindness or hearing impairment, no further documentation may be required. The request for documentation is valid to establish the validity of the accommodation requested and to help identify required accommodations.

If you do not require any accommodations, you can choose to keep this information private. However, if you need accommodations because of your disability, you must disclose that information to receive those accommodations.

Kit Ellenbogen, Esq.
Association for Children of New Jersey
(Fifth Edition) John Sarno, Esq.
(Prior Editions)

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Those who want to provide at their death for an individual with a disability should consider establishing a special needs trust (sometimes known as a supplemental needs trust) in his or her will. Properly drafted, such a trust not only will allow the trust funds to be managed for the person with a disability, but also will allow the trust funds to be available to that individual for his or her supplemental needs. This permits a person with a disability to remain eligible for government benefits such as Medicaid and Supplementary Security Income (SSI) that are available only to those with limited income and assets. A recipient of Social Security Disability and Medicare is not subject to income and asset limitations in order to continue receiving government benefits, but, depending upon the nature of the disability, the individual may benefit from the management aspect of the trust. The will must specify who will receive the trust funds remaining at the death of the person with a disability-for example, his or her children or siblings, or one or more charities.

Sometimes other documents may be necessary. For example, a person making a will may have concerns that he or she may, in the future, be affected by a disability or cognitive impairment requiring long-term care. This long-term care could deplete assets that were intended for a loved one with a disability. Precautions can be taken to preserve one's assets. Such precautions could include the purchase of long-term care insurance for the person making the will, or consulting with an attorney experienced in elder law who can give advice on how to make a plan so that government benefits could be accessed at some future time to pay for that care. In addition, Medicaid regulations presently provide that an individual entering a nursing home can create a trust in which the lion's share of his or her assets can be placed into a trust for a person with a disability under age 65, without creating any ineligibility for the person entering the nursing home. This trust is known as a "(d)(4)(A) payback trust," and must be created by the parent, grandparent or guardian of the person with a disability, or the court, to be used for that person's sole benefit. The funds in the trust are available for the lifetime supplemental needs of the person with a disability, and upon that person's death, the trustee must repay Medicaid from the funds left in the trust, up to the amount that Medicaid paid on behalf of the person with a disability.

This "payback" trust also can be used on behalf of a person with a disability, to protect funds received from a personal injury lawsuit.

Another way of providing for the supplemental needs of a person with a disability is to create a trust funded with life insurance on, for example, a parent's life. Life insurance is relatively inexpensive if purchased when the parent is young, and such a trust ensures that the person with a disability will have funds in excess of the SSI check for his or her needs after the parent dies. What happens to public benefits if an individual with a disability receives assets outright or in a trust that provides for his or her support, care, and maintenance?

An individual with a disability who receives assets outright from a decedent's will could become ineligible for Medicaid and SSI, both of which have rules on financial eligibility pertaining to income and assets.

Similarly, an individual with a disability who is the beneficiary of a typical trust (rather than a supplemental needs trust) providing for his or her support, care and maintenance will be disqualified from receiving government benefits such as SSI and Medicaid (although not Medicare and SSD). In that case, the trustee would be required to use trust assets for that person's support, care and maintenance until the trust funds are spent down to the maximum resource level for SSI and Medicaid. Only then could the person with a disability again receive SSI and Medicaid. I have two children. Should I leave all of my assets to the child who is not affected by a disability, to avoid the necessity of creating a special needs trust for the one who is?

No. Without such a trust, the child receiving the parent's assets would have absolutely no obligation to use any of those assets to benefit the sibling with a disability. Furthermore, that child could die prior to the child with a disability, without making any provision in his or her will for the sibling. If there is no will, assets would pass to the surviving spouse and children, if any, of the sibling without a disability-not to the sibling with a disability. Further, the child without a disability may be divorced, sued or forced to enter bankruptcy-situations that could result in all the assets left by the parents being used for a purpose that does not benefit the child with a disability.

This is a difficult question that can be answered only on an individual basis, with guidance from the parents' lawyer and financial advisor. An estate that can provide $10,000,000 to a child with a disability is more than sufficient without worrying about government benefits such as SSI and Medicaid. An estate valued at $1,000,000 may not be sufficient, depending upon the degree of disability for the child and the resulting future care needs. An estate of $25,000 certainly would not be sufficient to provide for the care of a child with even a moderate disability. If a family realizes that their child's future care needs are large, and the parents do not believe they will have a large estate, they can purchase life insurance to create a suitable estate for their child.

A supplemental needs trust would preserve the parents' funds (or life insurance proceeds) for expenses relating to supplemental and special needs rather than care and maintenance, and still allow the child with a disability to receive government programs such as Medicaid and SSI.

Who should be the trustee of a special needs trust for a child with a disability?

Most families wish to name a sibling or other close family member of the child with a disability. Who should serve as trustee of a special needs trust is a decision to be reviewed carefully on an individual basis. The trustee sometimes may have to deny the demands of the person with a disability, either because granting the request would threaten the receipt of government benefits, or because the trustee believes the request is not in the person's best interests. The family must consider whether one sibling should be placed in the role of having to refuse another sibling's requests. Further, a sibling or other family member may not have sufficient expertise to manage the trust funds and/or to submit the proper tax returns; and may not have sufficient time to identify and explore issues and resources, such as appropriate housing and programs, for the child with a disability. One solution is that rather than serving as sole trustee, a family member can be a co-trustee, with a professional serving as the other co-trustee. For example, a specialized agency or institution such as Planned Lifetime Assistance Network of New Jersey, could possibly serve as trustee, or be hired by an individual trustee to assist with the care plan for a child with a disability.

Yes. While it is currently true that Social Security Disability and Medicare benefits are not income- and asset-tested, Social Security is a creature of the Legislature, and Congress is free to change it at any time. Accordingly, it is prudent to establish a supplemental needs trust for an individual who is receiving these benefits, just as one would do for a recipient of SSI and Medicaid. Then, if the laws change in the future, the disabled individual's benefits most likely will not be reduced, assuming the rules will not be more stringent than those that currently apply to SSI and Medicaid.

Brenda McElnea, Esq.
West Orange, N.J.
(Fifth Edition)

Marc Levin, Esq. and Kenneth R. Bieg, Esq.
(Prior Editions)

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• discrimination in the sale or rental of dwellings or otherwise making unavailable or denying a dwelling;
• indicating that a dwelling is not available when the dwelling is in fact available;
• discrimination in the terms, conditions or privileges of the sale or rental of a dwelling;
• discrimination in the provision of services or facilities in connection with the rental or sale of a dwelling;
• prompting a person to sell or rent by indicating that a person with a disability is entering or will enter the neighborhood;
• publishing any notice, statement or advertisement with respect to the sale or rental of a dwelling which indicates any preference, limitation or discrimination;
• refusing to permit a person to make reasonable modifications to a dwelling where such modifications are necessary to afford that person full enjoyment of the premises;
• refusing to make reasonable accommodations in rules, policies, practices or services which would be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling; and,
• a landlord or seller asking about a tenant's or applicant's disability, unless the landlord or seller is providing housing designed for occupancy by persons with disabilities or for persons with a particular type of disability, and the questions relate to eligibility for housing.

Housing units covered by these provisions of the FHAA include most apartments and other multiple dwelling units, except for buildings which contain no more than four separate living units and where the owner lives in the building.

The sale or rental of a single-family house may be covered depending on the owner of the house and the method of sale.

Another federal law, Section 504 of the Rehabilitation Act, 29 U.S.C. §794, prohibits discrimination on the basis of disability in public housing, Section 8 and other federally subsidized housing units.

State law also prohibits housing discrimination on the basis of disability. The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq.; Municipal Land Use Law,

N.J.S.A. 40:55D-66.1; Handicapped Access Law, N.J.S.A. 52:32-4, et seq.; and Barrier-Free Subcode, N.J.A.C. 5:23-7.1, et seq., all contain important protections against housing discrimination for people with disabilities. The laws are similar, but not identical, to the federal FHAA. In some instances, state law may cover housing units not reached by the FHAA or provide greater rights than the federal law.

Yes, if the person's disability meets the definition of "handicap." "Handicap" is defined as a physical or mental impairment which substantially limits one or more of a person's major life activities. A person with a history or record of a physical or mental impairment, or who is regarded as having such an impairment is also considered to have a "handicap."

Discrimination is prohibited on the basis of "handicap." However, persons with a handicap may not be protected if they constitute a direct threat to the health or safety of others or if their tenancy would result in substantial physical damage to the property of others.

A person who has a history of illegal drug abuse is also protected. However, if a person is currently abusing illegal drugs, he or she is not protected.

Much, but not all, new housing must be constructed so as to be accessible to people with disabilities. Barrier-free architectural design is required by both federal and state law in most newly constructed and, in certain cases, renovated, covered multifamily housing.

New housing units covered by the Fair Housing Amendments Act (FHAA) and the New Jersey Barrier-Free Subcode include units in buildings with more than four units, if these buildings have one or more elevators, and ground floor units in buildings having four or more units, but no elevator.

The FHAA sets minimum federal standards which are, in certain respects, exceeded by the New Jersey Barrier-Free Subcode. There are many technical design specifications and rules mandating how such units must be designed and constructed.

Newly constructed housing must include accessible public spaces and routes of travel into the residential units. Such housing must also have individual units that have adaptable elements, such as kitchen counters, sinks and grab bars that can be readily modified for individual needs.

A person with a disability may file a complaint with the regional office of the U.S. Department of Housing and Urban Development (HUD) (800) 669-9777 (voice); (800) 927-9275 (TDD) or file a lawsuit under federal or state laws. A HUD complaint must be filed within one year of the discriminatory act. A complaint in federal or state court under the FHAA must be filed within two years of the discriminatory act.

A person with a disability might also consider filing a complaint with the New Jersey Division of Civil Rights. The phone number for your local office is listed in the phone book. Such a complaint must be filed within 180 days after the alleged act of discrimination.

No. "Self-help" evictions by landlords of residential tenants are prohibited in New Jersey. Before a tenant can be evicted, the tenant should receive notice of a court hearing and be given an opportunity to appear at the hearing.

In most situations, a tenant can be evicted only if the landlord has "good cause" as set forth in New Jersey's Anti-Eviction Act. N.J.S.A. 2A:18-61.1, et seq. The New Jersey Supreme Court has held that the good cause provisions of the Anti-Eviction Act also apply to tenants whose landlords have lost ownership of the building through foreclosure. This is true regardless of whether the tenancy was established before or after the finalization of the mortgage. Chase Manhattan Bank v. Josephson, 135 N.J. 209 (1994).

A different law establishes the grounds for eviction of tenants who live in owner-occupied buildings with no more than two rental units. Among other things, this law allows these landlords to end a tenancy more easily at the expiration of a lease. However, the law still requires notice, a court hearing and proof that grounds for eviction exist. N.J.S.A. 2A:18-53.

Persons in hotels, motels or guest houses or other transient guests or seasonal tenants are typically excluded from the protection of New Jersey's Anti-Eviction Act, unless they can show long-term residency. In many instances, boarding home residents are protected by the Act by virtue of the regulations governing boarding homes. N.J.A.C. 5:27-3.3. What is "good cause" for eviction?

The Anti-Eviction Act lists many different grounds that can constitute good cause for eviction.

A landlord may evict a tenant when the tenant is not behaving properly, such as not paying the rent or a reasonable rent increase, consistently not paying rent on time, causing damage to the landlord's property, being disorderly and interfering with other tenants, not complying with the provisions in the lease or with the landlord's written rules and regulations, or possessing or having other involvement with illegal drugs.

A landlord may evict a tenant because the landlord wants to change the nature of the building, such as permanently closing the building down, converting the building to a cooperative or a condominium, or when the owner of a small building (three or fewer units) wants to move into one of the units.

The expiration of a lease is usually not, by itself, a legally sufficient reason to require a tenant to move under the Anti-Eviction Act.

Upon expiration of the lease, the tenancy is usually deemed to have automatically converted to a month-to-month tenancy. Unless otherwise agreed to by the parties, the new tenancy continues to be governed by the same terms and conditions that were contained in the prior lease agreement.

The Anti-Eviction Act includes important notice protections. See N.J.S.A. 2A:18-61.2. In most situations where a landlord seeks to evict a tenant, the landlord must give the tenant some written notice of his or her intention to file an eviction action with the court. This notice is called a "Notice to Quit," and must contain the specific reason the landlord is asking for the eviction. The amount of advance notice a tenant must receive depends on the landlord's reason for seeking an eviction. Persons living in federally subsidized housing are entitled to additional notice, even in cases involving non-payment of rent. See 42 U.S.C. §1437(f).

If the landlord is claiming that the tenant is being disorderly or is violating the lease, a written rule or regulation or other terms of the tenancy, or is habitually late with rent payments, the landlord must first give the tenant a written "Notice to Cease." A Notice to Cease is a warning to the tenant that unless the tenant stops the behavior about which the landlord is complaining, the landlord will terminate the tenancy and serve the tenant with a Notice to Quit.

There are some important limitations on the advance notice requirements for a tenant who is causing damage to the landlord's property, who possesses illegal drugs or who threatens or assaults a landlord or his or her family or employees, who has committed certain theft offenses, or who knowingly harbors a person who has committed such acts.

A tenant can attempt to argue to the court that the full amount of rent claimed as due by the landlord should not have to be paid because the conditions of the apartment are so poor as to render it "uninhabitable," or because the tenant has paid for necessary repairs, the cost of which should be deducted from the rent. Prior to withholding rent, a tenant should notify the landlord of the problems and allow the landlord reasonable time to remedy them.

In most cases, the court will require the tenant to pay to the court the full amount of the rent claimed by the landlord, before the court will listen to the tenant's claims regarding a reduction in rent. If the rent is not paid to the court, the judge can order the tenant evicted without holding a hearing on the tenant's claims.

If a judge orders that the tenant is to be evicted, the judge will enter a Judgment of Possession in favor of the landlord. The landlord must then wait three business days before requesting that the court issue a Warrant of Removal to an officer of the court. The court officer must then serve the warrant on the tenant. The tenant cannot be removed from the property until the third business day after having received the warrant. N.J.S.A. 2A:42-10.16.

If a tenant does not prevail in litigation, a Judgment of Possession will be entered. However, in exceptional cases, a tenant can request that the court set aside the judgment if he or she can demonstrate a sound defense and some basis for reopening the case. R.4:50-1; Housing Authority of Town of Morristown v. Little, 135 N.J. 274 (1994). In addition, a tenant can ask the court for a stay or postponement of eviction for up to six months because of hardship. A court is permitted to grant the stay if the tenant has been looking for a new place to live but has not been able to find one, has paid all the rent due, and is not disorderly or causing damage to the landlord's property. N.J.S.A. 2A:42-10.1-10.6.

When a tenant is evicted as a holdover from owner-occupied premises of not more than two rental units, stays of eviction may also be granted for up to two, one-year periods where the tenant has been certified as having a terminal illness by a licensed physician and certain other conditions are met. N.J.S.A. 2A:18-59.1.

Finally, the court possesses the power to grant a discretionary "orderly removal" stay of short duration which can allow a tenant to move out of the premises in an orderly way.

An owner intending to convert a building to condominiums or a cooperative must provide to the tenant a 60-day notice of intention to convert, prior to serving the tenant with a Notice to Quit. In this instance, the Notice to Quit must be served three years before a court action can be started to evict the tenant because of the conversion. Unless the tenant has been offered comparable housing by the landlord, the tenant may be granted additional time to reside in the apartment by a court. N.J.S.A. 2A:18-61.11.

The tenant may, within 18 months of receipt of the notice of owner intent to convert, demand that the landlord assist the tenant in locating comparable housing. Thereafter, unless the tenant has been offered comparable housing by the landlord, the tenant may be granted additional time to reside in the apartment by a court. N.J.S.A. 2A:18-61.11.

Senior citizens (62 years of age and older) and persons with disabilities are protected against conversion of their apartments to co-ops or condominiums by the Senior Citizen and Disabled Protected Tenancy Act for a period of 40 years. N.J.S.A. 2A:18-61.22, et seq. Recent amendments to the statute have expanded the term "disabled tenant" to include honorably discharged veterans rated as having at least 60 percent disability resulting from armed service pursuant to any federal law. To receive the protection of the statute, senior citizens and persons with disabilities need to have lived in their building for only one year prior to the recording of the conversion plan, or to have resided in their apartment pursuant to a lease of more than one year. N.J.S.A. 2A:18-61.24.

Application for a protected tenancy must be made within 60 days of mailing to the tenant of a notice of the availability of protected tenancies by the municipality. However, a tenant's application received after 60 days may still be considered if made prior to Judgment of Possession or before the apartment is sold.

Yes. Tenants who are forced to move due to governmental action, fire or other emergency, may also be eligible for relocation assistance from the New Jersey Department of Community Affairs (DCA), the local municipality or the landlord. See N.J.S.A. 20:4-1 and N.J.S.A. 52:31B-1 and the regulations of DCA. at N.J.A.C. 5:11-1.1, et seq.

There are three major programs to help persons facing eviction who are unable to pay their rent.

The Emergency Assistance (EA) program

The Emergency Assistance (EA) program is available only to persons receiving welfare or Supplementary Security Income (SSI). EA funds are potentially available to pay back rent, mortgage payments or utility payments, temporary rental assistance, shelter, security deposits and other housing-related costs. Applicants must apply to the appropriate county or municipal welfare agency and must establish that they are homeless, or will become homeless imminently, due to circumstances beyond their control; or due to the absence of a realistic capacity to plan in advance for substitute housing; and/or that emergency assistance is necessary for health and safety.

EA benefits are now limited to 12 cumulative months in most cases. They can be extended only where the recipient has taken all reasonable steps to resolve the emergency situation, but the emergency nonetheless continues or a new emergency occurs which causes extreme hardship to the recipient.

The Homelessness Prevention Program (HPP) The Homelessness Prevention Program (HPP) may be available to persons who are not eligible for EA, such as those who are employed, or are receiving unemployment or disability insurance benefits. N.J.S.A. 52:27D-280. This program provides assistance with rent and mortgage payments. Like the EA program, HPP can also assist persons who are homeless and are seeking security deposits and advance rent in order to lease an apartment.

One major requirement of this program is that the applicant demonstrate that the housing costs will again become affordable in the future. Application for HPP benefits is made to the New Jersey Department of Community Affairs.

Housing Opportunities for People with AIDS (HOPWA) The Housing Opportunities for People with AIDS program serves people who are HIV-positive and homeless or at risk of homelessness. HOPWA assistance can range from housing counseling to rental assistance and assistance with back rent, moving expenses and other services. Contact the New Jersey AIDS Hotline at (800) 624-2377 (voice); (201) 926-8008 (TDD) for referrals to local HOPWA agencies.

James W. Drake Jr., Esq.
N.Y. Mental Hygiene Legal Services
Kevin B. Kelly, Esq.
Seton Hall Center for Social Justice
Stuart H. Weiner, Esq.
Community Health Law Project
(Fourth Edition)

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Medicaid

Medicaid is a means-tested health benefits entitlement program funded and administered jointly by the federal government and the states. Medicaid is available primarily for needy families and pregnant women, as well as those who are blind, have disabilities or are over the age of 65 who meet the income and resource requirements.

Individuals who are receiving Supplemental Security Income (SSI) in New Jersey are automatically eligible for Medicaid for their medical expenses. Individuals who are receiving Social Security Disability Income (SSDI) or are retired, and who have resources at or below $2,000 and monthly income not exceeding $1,500 per year, may be entitled to receive Medicaid if their medical expenses exceed set levels. Institutionalized individuals may be entitled to receive Medicaid through either the Medicaid Only or the Medically Needy programs when their resources have been reduced to the appropriate resource level — $2,000 for Medicaid Only and $4,000 for Medically Needy.

The Medicaid Only program is only available to those individuals whose income is at or below the "income cap" and whose resources do not exceed $2,000. The income cap is a figure which is set annually and in 1999 it was $1,500 per month. The Medically Needy program is available to those individuals whose income exceeds the "income cap" or who have resources in excess of $2,000 but no more than $4,000.

The Medicaid Only program will cover Medicare Part B premiums, chiropractic visits, in-patient hospital services, nursing home costs and pharmaceuticals. The Medically Needy program does not cover Medicare Part B premiums, chiropractic visits, in-patient hospital services or home pharmaceuticals received outside a nursing home setting, but does cover some nursing home costs including nursing home pharmaceutical costs.

The residence and various personal items, such as one automobile, clothing, jewelry, etc., will not count as assets for Medicaid purposes. In addition, the spouse who remains in the community may keep at least $16,392 worth of the couple's non-exempt resources, or one half of the couple's resources up to $81,960.

In New Jersey, Medicaid may provide home care services under a waiver program. The Community Care Program for the Elderly and Disabled (CCPED) provides assistance in the home for individuals who are over the age of 65 or have disabilities and have Medicare or other health insurance which includes hospital and physician coverage. Services provided include case management, home health care, homemaker, medical day care, non-emergency medical transportation, respite care, and social day care. CCPED is available statewide but is limited to 2,989 community care slots for the entire state. Each county has been allocated a specific number of slots in accordance with the needs of the community. Essex County was allocated 372 slots.

Other model waiver programs include the ABC Program for medically fragile children which covers home and community-based services for children and adults with disabilities.

Gifts, known as "asset transfers," may prevent an individual from receiving Medicaid. Medicaid regulations impose a period of ineligibility for transfers of assets, such as gifts to children, made within three years of a Medicaid application. However, transfers of assets between spouses, or to a child with a disability, will not create a period of ineligibility. It is possible to have made transfers within the three years prior to the Medicaid application and still receive Medicaid, but the transfers must be very carefully structured.

If an initial application for Medicaid benefits is denied, if Medicaid eligibility is terminated, or if Medicaid refuses to pay a claim, the individual has a right to a fair hearing before a New Jersey administrative law judge. At that hearing, the individual has a right to be represented by a lawyer and to present evidence including testimony to support the case. The judge makes a recommendation to Medicaid regarding the case. Then, if Medicaid still denies the claim, the individual has a right to appeal to the Appellate Division of the Superior Court of New Jersey. If Medicaid advises that it intends to discontinue benefits, the individual may have a right to have benefits continue until the appeal has been decided.

In a 1998 decision, the New Jersey Supreme Court determined that the retirement accounts (IRAs and 401(k)s) of a Medicaid applicant, or the applicant's spouse, constitute resources for Medicaid purposes and must be spent down to the Medicaid allowable resource level before Medicaid eligibility can be established. If the spouse in the community is still working, Medicaid requires him or her to take the maximum amount out of his or her retirement accounts and to spend it down to the Medicaid allowable resource level before Medicaid eligibility can be established for the institutionalized spouse.

The Essex County Medicaid Office is located at 498 Main Street, Orange, New Jersey 07050 and the telephone number is (973) 733-3000 (voice only). Phone numbers for Medicaid offices in other counties can be found in the telephone book under county agencies.

Brenda McElnea, Esq.
Verona, N.J.
Mary WanderPolo, Esq.
Verona, N.J.

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Medicare

Medicare is the only national health insurance program in the United States. Enacted in 1965, Medicare was originally designed to provide health care only to persons over 65, regardless of their income, but today it covers approximately 39 million beneficiaries.

Medicare is available to persons 65 and over who are entitled to Social Security or Railroad Retirement benefits. This group includes not only insured retirees, but their dependents and survivors as long as they are over the age of 65. In 1972, Medicare was extended to individuals with disabilities under age 65 who have been collecting Social Security Disability benefits for at least 24 months. Also eligible for Medicare coverage are persons under age 65 with end-stage renal disease and certain federal employees and their families. In addition, certain uninsured persons over the age of 65 may buy Medicare coverage by paying monthly premiums.

Medicare is an exclusively federal program providing health care coverage to individuals regardless of their income or assets. Both rich and poor receive the same benefits. Medicaid, on the other hand, is an income eligibility program administered by the federal and state governments. Although each state has its own Medicaid rules, all Medicaid programs have strict financial guidelines. In most cases, a person cannot have more than $2,000 in the bank and income must be so low as to be unable to pay for medical care. Medicare pays only for health care that is considered "medically necessary" while Medicaid will also pay for custodial care — help with the activities of daily living, such as eating, dressing, toileting, transferring from bed to chair, and bathing. Medicaid will also pay for deterioration in vision and hearing as well as dental health, while Medicare will not cover these services.

Everyone eligible for Medicare automatically receives Part A coverage without charge. Part A covers hospital stays; medically necessary care, such as physical and occupational therapy, in a skilled nursing home; certain home health care after a stay of at least three days in a hospital and within 30 days of discharge from a hospital; and hospice care for persons with terminal illness.

Part B is a voluntary program. Beneficiaries who are eligible for Part A and who wish Part B coverage pay $45.50 a month. This amount is usually deducted from the beneficiary's monthly Social Security check. Part B coverage includes physicians' services, diagnostic tests, durable medical equipment, ambulance services, outpatient physical and speech therapy and x-rays.

Until recently, Medicare did not pay for preventive care. However, Medicare will now cover: mammography; PAP smears and pelvic examinations; colorectal cancer screening, including sigmoidoscopy and colonoscopy; diabetes monitoring; bone mass measurements; vaccinations, including flu, pneumonia and Hepatitis B. Starting on January 1, 2000, Medicare also covers prostate cancer screening.

Medicare does not pay for the full cost of all services. The patient is responsible for deductibles and co-payments, but, if the patient has supplemental insurance (a "Medigap" policy), the private insurance will often pay for these out-of-pocket costs. Medicare Part A will pay for the first 60 days in the hospital subject to a deductible ($768); for the 61st to the 90th day, subject to a $192-a-day co-payment; and for a lifetime reserve of 60 days, subject to a $384 co-payment. Part A will pay for the first 20 days in a skilled nursing home for skilled nursing and rehabilitative services; and for the 21st to the 100th day, subject to a $96 a day co-payment. Part A will pay for most eligible home health services and most hospice care.

Medicare Part B will pay 80 percent of a doctor's reasonable and customary fee. The patient will be responsible for a $100 annual deductible and 20 percent of the doctor's reasonable and customary fee. Medicare will also pay for 50 percent of most outpatient mental health services, 80 percent of the first $1,500 of physical therapy services and 80 percent of the first $2,500 of occupational therapy services.

Medicare classifies physicians into participating and non-participating physicians. Since 1990, however, all physicians, whether or not they participate in Medicare, must submit claims to Medicare on behalf of their patients. A participating physician is said to take "assignment" and may not charge more than what Medicare has established as the "reasonable and customary charge." Medicare pays the physician who accepts assignment 80 percent of the charge, while the beneficiary or the beneficiary's Medigap policy pays the 20 percent co-payment. If the physician does not accept assignment, Medicare sends the check to the beneficiary, who is then responsible for reimbursing the physician. Non- participating physicians are subject to what is called a "limiting charge." Currently, a doctor may not charge a Medicare beneficiary more than 115 percent of what Medicare says is the "reasonable and customary fee."

The U.S. Health Care Financing Administration (HCFA) regulates Medicare. HCFA, however, contracts with private insurance companies to process Medicare claims. These insurance companies review individual Medicare claims in accordance with HCFA rules and statutes enacted by Congress. Because these laws and rules are subject to different interpretations, beneficiaries should usually consider appealing a denial of a claim. The appeal procedure is outlined in the Explanation of Medicare Benefits which beneficiaries receive from the insurance company.

A Medicare claim may be denied because the service was not considered reasonable or medically necessary or, in a claim for nursing home coverage, the service was considered custodial. The beneficiary does not have to pay if the beneficiary believed in good faith the service would be covered, and the provider of the service did not advise otherwise. In that case, the health care provider or Medicare will be liable. Medicare, however, will pay the provider if it can be shown that neither the beneficiary nor the provider had reason to know the service would be excluded. If Medicare determines that the provider should have known the service would not be covered, then the provider will be held responsible and the beneficiary will not have to pay the bill. For all hospital claims, the beneficiary should insist the claim be submitted for review by the hospital Peer Review Organization. If the provider is a skilled nursing home, the patient should insist the nursing home provide a "demand bill." If this is not done, the beneficiary will have no grounds for appeal.

Because Medicare does not pay for all medical expenses, Medicaid has programs to pay premiums, deductibles and co-payments for certain persons who are older, low-income or have a disability and are entitled to Medicare Part A. If a beneficiary's bank accounts or other resources do not exceed $4,000 for an individual or $6,000 for a couple, that beneficiary may qualify for assistance as a Qualified Medicare Beneficiary (QMB), a Specified Low-Income Medicare Beneficiary (SLMB) or a Qualifying Individual (QI). If a beneficiary's monthly income was below $691, that person was a QMB; Medicaid would pay that person's premiums, deductibles and co-payments. A SLMB is an individual with monthly income below $825; Medicaid will pay that person's Part B monthly premium. Individuals who believe they may qualify should contact their county Medicaid office.

The Balanced Budget Act of 1997 made the most significant changes in Medicare since its inception in 1965. It created the Medicare+Choice program, which went into effect in January 1999. New options offered include: HMOs with point-of-service options; preferred provider organizations; provider-sponsored organizations; private fee-for-service plans; medical savings accounts; and religious and fraternal benefit plans. Beneficiaries are strongly advised, however, that if they are content with their current coverage, they should not change their plans.

Under the traditional Medicare option, beneficiaries have freedom of choice to use any hospital or doctor who accepts Medicare. The Health Care Financing Administration currently regulates doctors' fees and other aspects of the program. Traditional fee-for-service Medicare may be supplemented by a Medigap policy, which, depending on the amount the beneficiary is willing or able to pay for premiums, can cover the deductibles, co-payments and other out-of-pocket costs. In 1991, Congress standardized Medigap policies. Insurance companies now offer Plans A through J. Depending on the geographic area and the insurance company, premiums may range up to $4,419 a year with a $1,500 deductible for Plan J.

Under the Medicare Health Maintenance Organization (HMO) option, patients must use hospitals, doctors, and suppliers approved by the HMO. Many of the plans provide preventive care, prescription drugs and other items not covered by the traditional Medicare program, with no deductible and only a nominal co-payment for visits. Beneficiaries selecting the HMO option must choose Part B coverage under Medicare, but need not purchase a Medigap policy.

Patients will meet most of their medical needs using doctors and hospitals on an approved list but may go outside the network if they are willing to pay extra.

A Preferred-Provider Organization is a hybrid of traditional fee-for-service and managed care options. Under a PPO, providers of medical care contract with the insurer to serve enrollees at a discounted, fee-for-service price. Beneficiaries will be able to use any hospitals or doctors but will pay less if they use those on an approved list.

A Provider-Sponsored Organization is owned and operated by the doctors and hospitals providing services to the beneficiaries. They will be required to treat enrollees at a fixed rate similar to a Health Maintenance Organization (HMO).

Enrollees in a Private Fee-for-Service Plan purchase a private indemnity health insurance policy from a company that has contracted with Medicare to provide services under Parts A and B. The beneficiaries will be able to go to any doctor or hospital, but the federal government will not limit the premiums that may be charged, nor regulate the fee schedule established by the insurance company. The plan will receive a fixed amount of federal money for each beneficiary, while providers will be paid a separate fee for each service.

A Medical Savings Account is authorized as a demonstration project until the year 2002 when it will be re-evaluated by Congress. During the demonstration period, an MSA will be available to only 390,000 beneficiaries, which is one percent of all beneficiaries. The beneficiaries may choose a private insurance policy with a high deductible (up to $6,000) to cover catastrophic expenses and Parts A and B. Any expenses that Medicare would have paid for enrollees had they remained in the Medicare program will count toward satisfying the deductible. After the deductible is satisfied, the insurer will pay coinsurance for services under Part A and B and any other services named in the policy. Medicare will pay the premium and will deposit money in a savings account, which will be used to pay for routine medical expenses. Patients may have to use their own money to pay medical bills up to the deductible, if the savings account is insufficient. The amount deposited by Medicare into the MSA will not be taxed as long as it is used for medical expenses; amounts withdrawn for non-medical purposes will be taxed as ordinary income. A tax penalty will be imposed if the account falls below a certain amount because of nonmedical expenses. Funds in the MSA may accrue from year to year.

The Religious and Fraternal Benefit option is offered only to members of a contracting religious or fraternal group. As of this writing, only the Mennonites have applied for participation in this program.

The Balanced Budget Act of 1997 permits private contracts between a Medicare beneficiary and a physician or other practitioner who has "opted out" of the Medicare program for a two-year period. The Medicare beneficiary, who chooses to deal with a physician or practitioner on this basis, gives up the right to file a claim with Medicare and Medigap insurance and agrees to pay for the services directly and in full. The "opted out" physician may charge any fee but must contract with all Medicare beneficiaries, not just some of them. Once the physician has "opted out," he or she must enter into a private contract with each Medicare beneficiary. The only exception is if the patient requires emergency care. Physicians who may opt out of Medicare are: doctors of medicine and osteopathy and the following practitioners: physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse midwives, clinical social workers and clinical psychologists. Those who cannot "opt out" are: optometrists, chiropractors, podiatrists, dentists and doctors of oral surgery, and physical and occupational therapists in private practice.

Terence Farrell, Esq.
Community Health Law Project
Esther P. Graves, Esq.
Teaneck, N.J.
Marilyn Askin, Esq.
West Orange, N.J.
(Fourth Edition)

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Social Security

The Social Security Administration (SSA) is responsible for two different types of monthly cash benefits for persons who are unable to work because of a disability. Social Security Disability Insurance benefits (also known as Title II benefits or SSDI) may be available to individuals with disabilities who have paid into the Social Security program through payroll taxes on their wages, or to individuals with disabilities who have been dependent on another person who has paid into the Social Security program. Supplemental Security Income (also known as Title XVI benefits or SSI) may be available to individuals with disabilities who have very little income and resources.

Both Social Security Disability Insurance and Supplemental Security Income utilize the same definition of disability. The person must be unable to engage in any type of work because of a mental or physical impairment which is expected to last for at least 12 months or result in death. In certain circumstances, the Social Security Administration (SSA) will consider an individual's age, education, and previous work experience in determining whether it is realistic for that individual to be able to adjust to a change in employment.

SSA's definition of disability is very strict. First, it requires an inability to do any type of job which is generally available. In other words, even if a person is not able to perform his or her previous job, if there is some other job that he or she could do, then that person is not eligible for disability benefits. Second, even if a person is not able to perform any type of job for some time, that person is not eligible for benefits unless he or she is unable to do any type of work for at least 12 months, or the illness is expected to cause death.

If SSA finds that an individual's disability is based on blindness, the regulations are somewhat different. In that case, a period of disability may be established regardless of whether the individual is working. The law also differs for the individual with blindness in other respects. For some, even though they are working, it may be advantageous to establish a period of disability with SSA. When evaluating the work of an individual who is blind, higher monthly earnings are allowed by SSA before the work is regarded as "substantial gainful activity." In addition, there are more deductions from the gross earnings which may be made in determining the income for substantial gainful activity purposes, as well as for counting income for SSI eligibility.

The amount of monthly Social Security Disability Insurance (SSDI) benefits received depends on the amount of the individual's prior earnings. Some other types of income, such as workers' compensation benefits, may reduce the amount of the monthly check, but most other types of income will not affect SSDI benefits.

The amount of monthly Supplemental Security Income (SSI) benefits received depends on the person's living arrangement, that is whether the person is living independently or is being supported by someone, and any other income or resources he or she has. Most other types of income, except such benefits as food stamps or government rent subsidies, can reduce the amount of the SSI benefit.

The Social Security Disability Insurance (SSDI) program will qualify a recipient for Medicare insurance after he or she has been eligible for monthly SSDI benefits for two years. Medicaid is available to all Supplemental Security Income recipients, usually beginning with the month in which the recipient applies for benefits. Some unpaid medical bills for up to three months prior to the application date may also be eligible for payment.

Technically, all disability benefits end at age 65. At that time, Social Security Disability Insurance (SSDI) benefits are converted to retirement benefits and Supplemental Security Income (SSI) benefits are converted to SSI's program for persons over 65. Until age 65, as long as an individual meets the eligibility requirements, there is no limit on the length of time that he or she can continue to receive disability benefits. However, the Social Security Administration (SSA) can require periodic submissions of evidence that an individual continues to meet the medical requirements for Social Security benefits.

Everyone who receives SSDI or SSI benefits is required to notify SSA of any change in his or her living situation or income which may affect the monthly benefit.

Both the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs have rules which will permit recipients to attempt to return to work without immediately risking the loss of monthly benefits and health insurance.

The SSDI program allows an individual to attempt to work for nine months (not necessarily consecutively) without jeopardizing his or her benefits. After those nine trial work months have been exhausted, there is a three-year period during which eligibility for monthly benefits depends on the amount of wages earned. Medical benefits can continue throughout this period.

The SSI program also permits recipients to work without jeopardizing eligibility for monthly benefits. However, the amount of the monthly benefit will depend on earnings. The Social Security Administration will deduct approximately $1 for every $2 earned from an individual's monthly benefit. Medicaid benefits, however, can continue even if a person does not receive a monthly check because of his or her wages.

Applications for either Social Security Disability Insurance or Supplemental Security Income can be made at the local Social Security Administration (SSA) office. If a person is unable to go to the local office, someone else may file the application, or the application process may be started over the telephone. SSA will usually require a face-to-face interview with one of its representatives, but a home visit can be scheduled.

Everyone has a right to file an application. Even if an SSA representative tells someone that he or she is not eligible for a program, that person should still be permitted to file an application, and to file an appeal if he or she is rejected.

The Social Security Administration (SSA) has an extensive review process which permits an appeal of any decision it makes which adversely affects an application for benefits. If an applicant disagrees with an initial decision made by SSA, he or she can ask for reconsideration. If a person disagrees with the decision on reconsideration, he or she may ask for a hearing before an administrative law judge. In addition, the decision of an administrative law judge may be appealed to SSA's Appeals Council and, thereafter, may be pursued in federal court.

SSA should fully explain the rights to appeal in any notice it sends to an applicant. Special attention must be paid to any time limits which are stated, particularly because benefits may stop unless an appeal is filed within a short period of time.

Esther P. Graves, Esq.
Teaneck, N.J.
Joseph Young, Esq.
N.J. Protection and Advocacy
(Fourth Edition)

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Special Education

Special education in New Jersey is governed by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. §794, New Jersey's special education statute, N.J.S.A. 18A:46-1, et seq., and New Jersey's special education regulations, N.J.A.C. 6A:14-1.1, et seq.

Section 504 of the Rehabilitation Act is an anti-discrimination law, not an education law. Section 504 applies to anyone who can show that he or she (1) has an impairment that substantially limits a major life activity (like learning), has a history of such an impairment or is regarded as having such an impairment, and (2) is being discriminated against by any program or activity receiving federal funds (like a public school or a public library). While students with disabilities are entitled to education and related services under the Individuals with Disabilities Education Act (IDEA), the coverage under Section 504 is broader. A larger group of students may be covered under Section 504, because "disability" is defined broadly, unlike IDEA's list of qualifying disabilities. Section 504 also covers children who may require only "related" services, which can be viewed as accommodations and/or modifications, rather than special education.

Although the coverage is broader, the services under Section 504 are often more limited than those required by IDEA. Under Section 504, schools are only required to make sure that the student with a disability is getting the services which level the playing field in relation to non-disabled children in the same situation. In other words, a child with a disability would only be entitled to preschool services under Section 504, if the district offers regular preschool services to all children. Preschool age children who qualify under IDEA must receive preschool services, whether or not the district offers them to all children.

Every child in New Jersey from his or her third birthday until age 21, who is determined to have a disability, is entitled to a free, appropriate public education. Education for these children must be provided in the least restrictive environment.

Supplementary aids and services must be implemented to ensure that, to the greatest extent possible, children with educational disabilities participate in the same programs, both academic and extracurricular, as non-disabled children.

In conformance with Part C of the Individuals with Disabilities Education Act (IDEA), the New Jersey State Department of Health and Senior Services provides early intervention services for children with disabilities or developmental delays from birth up to their third birthdays. There is a single point of entry for this program in each county: the Special Child Health Services Case Management Unit. In addition, there are four regional Early Intervention Collaboratives which coordinate services and provide information to parents. Children are entitled to comprehensive evaluations, and an Individualized Family Service Plan (IFSP) is developed for each family. New Jersey maintains that it will provide two hours per week of free services. Payment for additional services, if included in the IFSP, are determined by each family's financial situation.

Each school district is required to evaluate any child when there is reason to believe that the child may have a disability which may affect his or her ability to learn. The district must notify the child's parent(s) that an evaluation is planned and state the reason for the evaluation. A parent may also request an evaluation in writing. Written consent of the child's parent is required for evaluations. The initial evaluation includes professional observation and testing of the child to determine whether there is a need for special education and related services. In addition to basic testing, other evaluations may be required to complete identifying the child's needs, at no cost to the parent.

According to the Individuals with Disabilities Education Act (IDEA), the child is evaluated by an evaluation team. The team is composed of the child's parent(s); at least one special education teacher and one regular education teacher of the child; and a representative of the local district who is qualified to provide or supervise specially designed instruction and is knowledgeable about the general curriculum and the availability of resources; any individual who can interpret the instructional implications of evaluation results; other individuals who have expertise regarding the child; and, when appropriate, the child. This team determines whether the child has a disability, the educational needs of the child and whether the child requires special education and related services.

After the evaluation, the evaluation team and the parent meet and determine whether the child is eligible for special education services, and, if so, what program and services the child needs. Special education is available to children who require services as a result of mental retardation, hearing impairments, speech and language impairments, visual impairments, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments or specific learning disabilities.

The Individual Education Program (IEP) which is developed for each eligible student is the cornerstone of the child's right to services. The IEP is written in consultation with the child's parents. The IEP specifies the programs, placement and services the child will receive. It also includes a description of the child's current educational status, a statement of annual goals for the expected educational performance of the child, and a statement of objectives for the child's education which describes specific, measurable steps between a child's current status and annual goals. The IEP will also specify related services to which the child is entitled, including, but not limited to, transportation, occupational therapy, physical therapy, speech therapy and/or counseling.

Many options are available, depending upon the nature and severity of the child's disability and his or her educational needs. These options may include instruction in the regular school classroom which is complemented or replaced in part by special or supplemental instruction; full-time assignment to a special class in the local school district or in a neighboring school district; assignment to an educational program in a medical facility; vocational or technical classes; placement in an approved private school for students with disabilities which may be located inside or outside of New Jersey; placement in an approved residential school, or, as a last resort, individualized home instruction. The placement must be appropriate and in the least restrictive environment in order to minimize the child's isolation from the rest of the school population.

Inclusion is a term commonly used to indicate the implementation of an Individualized Education Program in a regular class in the local school district, with whatever supports and aids the child with a disability may need to receive an appropriate education. It is nothing more than the mandated least restrictive environment as stated in both federal and state law.

Sometimes. The High School Proficiency Assessment (HSPA), now required for the award of a high school diploma in New Jersey, may be modified or waived entirely for a child with severe disabilities. However, such modification must be specifically provided for in the child's Individualized Education Program (IEP). The IEP must specify those skills and goals which the child must attain to take the place of the HSPA and/or other state and local graduation requirements. A child who successfully completes his or her IEP requirements will receive a high school diploma and may participate in the regular graduation exercises.

When a student with a disability transfers to a New Jersey school district, that district's Child Study Team must conduct an immediate review of the evaluation information and the Individualized Education Program (IEP). The child's IEP will be implemented as written unless there is disagreement on the part of the Child Study Team or the parent(s). In that case, services will be provided pursuant to an interim IEP which is consistent with the current IEP, and supplemental evaluations may be required. Should the records from the previous school be incomplete or unavailable, the student must receive services consistent with the available information. The district must then complete evaluations, develop an IEP and implement an appropriate placement without delay.

An adult student or a younger child's parent(s) can request either mediation or a due process hearing. The school district may also initiate either process.

Mediation is an attempt to resolve a dispute informally, with a mediator who facilitates discussion between the parent(s) and the school district. Either party may request mediation, specifying the issue(s) in dispute and the relief sought, by writing to the State Director of the Division of Special Education, P.O. Box 500, Trenton, N.J. 08625-0500. A copy of that request must be sent to the opposing party who must be willing to enter into mediation. A form for requesting mediation, while not required, is available from the Department of Education.

In New Jersey, a due process hearing is a formal hearing before an administrative law judge in the Office of Administrative Law. The parent, adult student or the school district may request a due process hearing by writing to the Director of the Division of Special Education, with a copy to the opposing party. A form for requesting a hearing, while not required, is available from the Department of Education. Within seven days of receipt of the request, the Department of Education will schedule a conference. At this conference, the issue(s) will be defined and the possibility of settlement through mediation may be initiated. If the matter cannot be resolved, it will be transmitted to the Office of Administrative Law for a hearing two weeks thereafter. The parties will be asked to state what evidence and what witnesses they intend to produce at the hearing.

Yes. Emergency relief can be requested in writing at the same time that a hearing is requested, or anytime thereafter from the Office of Administrative Law. The request must be supported by an affidavit detailing the emergency relief requested and why emergency relief is needed. The probability of irreparable harm to the child's education must be demonstrated. A copy of the request and accompanying affidavit must be provided to the opposing party.

The decision of the administrative law judge, reached within 45 days of the hearing request, may be appealed in state or federal court. It will be implemented in the meantime, unless the judge grants a stay, which would delay implementation of the decision until the appeal is resolved.

Hon. Helen E. Hoens, J.S.C.
Kit Ellenbogen, Esq.
Association for Children of New Jersey
(Fourth Edition)

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Surrogate decisionmaking is the delegation by one individual to another individual of some or all of his or her rights to make decisions concerning his or her person or property.

When an individual is not able to manage part or all of his or her affairs, whether by reason of absence, age, incapacity or physical or mental frailty, a surrogate decisionmaker might be appropriate.

It is possible, and often desirable, to arrange in advance for a surrogate decisionmaker who would be empowered to act only if and when needed.

There are a number of arrangements available. In order to decide which is best in a particular situation, an individual must first determine what task the surrogate will need to perform. Will there be many tasks to be handled? Are there many or few assets? Do the assets require much or little attention? Are the assets substantial or modest? Are the individual's affairs complex or simple? After having determined what the surrogate might be called upon to do, the next step is to choose an arrangement that will best serve that purpose.

Often the only