Some New Jersey schools have been forcing students with disabilities to sign waivers promising not to sue the district before giving them access to special education services, HuffPost has learned.
A form distributed by districts asks families to “waive and relinquish; fully release and discharge; and indemnify and hold harmless” the school district and all of its employees “from all claims, liabilities, causes of action, costs, expenses, attorneys’ fees, damages, indemnities, and obligations of every kind and nature, in law, equity, or otherwise,” before providing students with the counseling and speech services outlined in their individualized education program, or IEP. (An IEP is the legal document that details the educational services districts are required to provide to a given student with disabilities.)
The form, devised with help from an education law firm, has raised alarms for disability advocates and lawyers, who have taken up the matter with the New Jersey Department of Education. Rebecca Schore, the legal advocacy director at Disability Rights New Jersey, said her organization already has two clients who have been asked to sign the waiver in order to receive counseling and speech support.
“If the parent refuses to sign it, they will absolutely withhold services,” Schore said.
Lawyers say they have not heard of students who do not require special education services being made to sign any such waivers.
Legal liability has become a significant concern of school districts as they transition to distance learning amid widespread school closures due to the coronavirus epidemic. Under the Individuals with Disabilities Education Act ― the sprawling federal law that governs special education ― schools are required to provide disabled students with an education analogous to that of their peers. But many of the services these students receive, whether that’s modified instruction or a full-time one-on-one aid, have proved challenging to provide virtually.
Districts and employees worry that they can be held legally accountable for failing to fulfill a student’s IEP, or if a child gets hurt performing physical or occupational therapy activities without employees’ in-person supervision.
School administration groups have been pushing for Secretary of Education Betsy DeVos to recommend waivers for IDEA provisions. In late March, the coronavirus relief package gave her 30 days to present Congress with a report about whether she thinks districts should be given flexibility in certain areas. The report could come at any minute.
“Federal laws were not written anticipating a global pandemic that has closed a large majority of schools across the country,” wrote the National Association of State Directors of Special Education and the Council of Administrators of Special Education in a March letter to the Department of Education, pushing for general waivers.
But presenting individual families with forms absolving districts and their employees of liability goes one step further on the issue.
“No parents should be asked to give up any rights or claims they may have in exchange for receiving constitutionally required educational services,” said Elizabeth Athos, senior attorney with the Education Law Center.
The form asks parents to sign off on a number of issues. It asks parents to agree not to be present for, or listen in on, or record virtual educational sessions. A recording could be a violation of the New Jersey wiretapping law, says the form ― a claim lawyers take issue with.
It also asks parents to give up their right to press charges for “negligence or negligent acts, for injuries, damage or loss which may occur, including, but not limited to, loss or damage to property, an injury invasion of privacy, disability or death to persons, arising out of, resulting from or in connection with the Services provided above.” The agreement provides indemnity to the district even after the student has become an adult.
The form was devised with the help of Machado Law Group, an education law firm in New Jersey. An attorney at the firm did not respond to HuffPost’s requests for comment on the matter.
An Machado Law Group attorney defended the forms in a letter to the New Jersey Department of Education and the governor’s office in early April, after disability rights groups raised the issue. The letter notes that the firm represents approximately 30 districts across the state of New Jersey and that they have already negotiated several waivers with families.