Open Letter to Ringwood Parents about Waivers

Dear Ringwood Parents:

An email communication sent to you by Ringwood Board of Education dated May 4, 2020, grossly mischaracterizes a recent Memorandum from the Department of Education, “Parental Waivers for the Delivery of Remote or Virtual Special Education and Related Services.” Notwithstanding the DOE Memo’s actual title, Ringwood suggests that the DOE Memo was focused on parental consent, and merely provided “clarifying guidance,” that school districts may provide special education services remotely without express parental consent.

While the DOE Memo does discuss “consent,” it only does so to debunk the claim that waiver demands like Ringwood’s are legal.  They are not.  In fact, the DOE Memo says so:[R]equiring parents or guardians to waive certain legal rights or give written consent for services as a condition for receipt of special education or related services [i.e., exactly what Ringwood did] . . . violate[s] the Individuals with Disabilities Education Act (IDEA) and NJDOE regulations. Ringwood provided parents of kids with disabilities with a waiver of rights, which it demanded that the parents sign as a condition of Ringwood’s compliance with their child’s IEP.  The document’s title referencing “consent” may have reminded you of a consent slip for a class trip.  But (as indicated in the document) it is a “legal agreement,” whereby parents would waive their legal rights in exchange for nothing more than Ringwood’s compliance with the IDEA.

This Firm believes that the waiver was drafted and provided by Ringwood’s law firm, Machado Law Group, because nearly identical waivers have been demanded by other districts that Machado represents, and because (as explained below) the Machado firm defended the practice of demanding waivers in a letter to the Governor and the Department of Education.

The Education Law Center, an education non-profit that advocates for children with disabilities, joined by numerous other non-profits, sent a letter of complaint to Governor Murphy and the DOE.  That letter was endorsed by numerous private law firms that represent parents in disputes with public schools, including this Firm.  To ELC and those who joined in its letter, it is beyond obvious that a school district cannot put conditions the provision of special education services required by law. This practice is prohibited by the IDEA, not the just-published NJ-DOE Memo.

The Machado firm wrote a response to ELC’s letter, defending the practice of demanding legal waivers as a condition of providing special education services, and arguing that the doing so is proper, for a variety of reasons, including (preposterously) the wiretapping laws.

Most outrageous, though, Machado stated: “[W]e have collaboratively negotiated several waivers with parents’ attorneys considering each individual students’ [sic] individual needs.”  What is outrageous about this, you may ask?  Machado’s strategy here is clear:

(i) Illegally demand a waiver as a condition of providing special education services;
(ii) Compromise on the terms, but only with those parents who are financially able to hire counsel; and
(iii) Create a paper trail as to the vast majority of the remaining parents, so that in legal disputes that arise later, Machado can argue that the parents waived their legal rights.

Fortunately, NJ-DOE has put a stop to this gamesmanship.  The DOE Memo expressly states that the practice of demanding waivers as a condition of the provision of special education and related services is illegal (the word NJDOE used is “prohibited”), and must stop.

Putting on a brave face on this “smackdown” by the DOE, Ringwood now sends out an email implying that the DOE has supported the District’s position, and suggesting that only now can the District provide special education and related services without parental “consent” (but not mentioning that the consent form it provided waived parental legal rights).  And the email fails to attach the DOE Memo, which says that the IDEA forbade Ringwood’s practice all along.

Ringwood’s email doesn’t change the fact that:

(i) Ringwood was breaking the law (the IDEA) by demanding the waivers as a condition of providing services,
(ii) the New Jersey Department of Education has now issued guidance expressly stating exactly that, and
(iii) Ringwood now mischaracterizes the DOE Memo, with a misleading email suggesting its position has been vindicated.

Anyone not paying attention, and relying solely on the email, could be forgiven for thinking Ringwood won a lawsuit over this issue.  In fact, the state DOE has essentially told Machado’s clients (including Ringwood) to “cut it out.”

Someone ought to be ashamed.  But, given this Firm’s dealings with this law firm and this school district, we doubt that anybody is.

The Firm offers a preliminary telephone consultation to any parent who wishes to discuss their education rights.  Call (862) 283-3155 to schedule an appointment.

Sincerely,

John Rue