By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
Among the entitlements afforded students with disabilities by the Individuals with Disabilities Education Act (IDEA), the right to a Free, Appropriate Public Education (FAPE) is the most fundamental. Providing students with disabilities a FAPE is the essential purpose of the IDEA and the focus of its procedural and administrative requirements. Principally, the IDEA was created to ensure that all eligible students with disabilities receive a FAPE in the least restrictive environment. IDEA does this through various mechanisms, including procedural protections, funding, and administrative oversight obligations for state educational agencies (SEAs). As such, State education agencies (SEAs) and the school districts, or local educational agencies (LEAs) that they oversee are tasked with ensuring students with disabilities receive a FAPE and that any impediments are identified and corrected.
Since IDEA ensures rights for students, those rights cannot simply be waived, even by a parent or guardian. One example of an an inappropriate attempt to waive rights would be where a district requires a FAPE waiver prior to agreeing to a proposed placement or services that the school district does not agree will provide the FAPE to which they are entitled, but which the parent requests for their child. Another scenario where this can happen is in the context of a parent’s invoking a procedural protection afforded by IDEA, such as requesting mediation, a complaint investigation, or a due process hearing, and including a FAPE waiver as part of the attendant efforts to resolve such filings.
The sacrosanct right to a FAPE cannot be taken away by the actions of the adults responsible for ensuring that the student receives a FAPE, including parents, school district staff (and contractors) and SEA employees or representatives. In this context, the New Jersey Department of Education (NJDOE), Office of Special Education (OSE), has issued multiple guidance documents recognizing and emphasizing students with disabilities’ right to a FAPE and the inability of the adults responsible for its provision to agree to waive that right on behalf of the minor student. NJDOE guidance clearly states that a FAPE cannot be waived or denied, even if the school district and parent agree to do so.
NJDOE’s April 30, 2020 Broadcast Memorandum
Parental Waivers for the Delivery of Remote or Virtual Special Education and Related Services
. . . The purpose of this memo is to clarify that these practices violate the Individuals with Disabilities Education Act (IDEA) and NJDOE regulations. Consistent with the guidance previously issued by the NJDOE as well as guidance issued by the U.S. Department of Education during the COVID-19 public health emergency, school districts must implement a student’s Individualized Education Program (IEP) to the greatest extent possible. Requiring the execution of a waiver or release of present or future claims as a condition to implement a student’s IEP is prohibited.
Waivers The federal IDEA and New Jersey’s special education regulations require school districts to provide a free and appropriate public education to students with disabilities through the provision of special education and related services. . . . Neither the IDEA nor the state’s special education regulations require or allow for the waiver of present or future claims, including claims to compensatory services, in order for students with disabilities to receive the services to which they are entitled as determined by the student’s IEP. . . . .
NJDOE’s December 10, 2025 Broadcast Memorandum
. . . . As part of its general supervision and monitoring responsibilities under IDEA, the OSE reviews every mediation agreement developed by IDEA mediators to ensure compliance with state and federal special education regulations and to safeguard the rights of students with disabilities to receive a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). Examples of mediation agreement provisions that would likely be found contrary to federal and state requirements include, but are not limited to: waiving a student’s right to a FAPE; . . .
If the OSE determines that any provision of a mediation agreement does not comply with federal or state law or regulations, the OSE will notify all parties that the noncompliant provisions cannot be enforced. In addition, the OSE will also implement appropriate corrective action when necessary to ensure district practices align with federal and state requirements. [Emphasis Supplied]
NJDOE’s May 21, 2025 Broadcast Memorandum
Under both the Individuals with Disabilities Education Act (IDEA) and N.J.A.C. 6A:14, the required timelines for conducting evaluations and providing services to students with disabilities are not subject to alterations or waivers. Parental consent cannot be used to extend or modify the legally established timelines. These timelines are statutory obligations that must be followed to ensure that services are delivered to students with disabilities in a timely manner. Local Education Agencies must take all necessary measures to ensure that timelines for evaluations, determination of eligibility, and the development and implementation of the individualized education program are compliant with both state and federal law. [Emphasis Supplied]
These memoranda emphasize school districts’ responsibility to provide students with disabilities a FAPE and make it clear that districts and parents cannot take action that imperils or denies a student’s right to a FAPE. Legal requirements in New Jersey education regulations also underscore that the obligation to provide students with disabilities a FAPE is sacrosanct and cannot be waived or altered. As set forth below, while State regulations permit limited exceptions to age-range and group sizes in special education settings, they do not permit waivers of any special education regulations.
N.J.A.C. 6A:5-1.3 Equivalency and Waiver
(a) 1. ii No equivalencies or waivers related to N.J.A.C. 6A:14, Special Education, shall be granted.
N.J.A.C. 6A:14-4.9 Exceptions
(a) Exceptions for the age range and group sizes specified at N.J.A.C. 6A:14-4.4, 4.5, 4.6, and 4.7 shall be granted: 1. On an individual student basis; 2. Only with prior written approval of the Department of Education through the county office of education (county office); and 3. For a period not to exceed the balance of the school year.
(b) The county office shall determine whether granting the exception would interfere with the delivery of a free, appropriate public education to the student or other students in the group and, on that basis, shall either: 1. Approve the request; or 2. Deny the request.
(c) If the request is denied, the district board of education is still obligated to implement the IEP. [Emphasis Supplied]
These regulatory provisions are in keeping with the primary goal of IDEA and the state regulations implementing IDEA as set forth in the beginning of the regulations. See:
N.J.A.C. 6A:14-1.1 General Provisions
(b) 1. The purpose of this chapter is to: 1. Ensure that all students with disabilities as defined in this chapter, including students with disabilities who have been suspended or expelled from school, have available to them a free, appropriate public education as that standard is set under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 et seq.); [Emphasis Supplied]
The regulatory system in New Jersey implementing IDEA and guidance issued over the years by the NJDOE clearly delineate and emphasize the obligation to provide a FAPE to all students with dyabilities, and does not permit waivers or actions that could imperil any student’s right to a FAPE, whether through agreement at an IEP team meeting, or through proceedings designed to settle disputes between parents and school districts. The State guidance also makes it clear that the NJDOE is monitoring school districts and agreements they reach with parents, and that the department will take appropriate action to address actions or agreements that can result in a denial of a FAPE to a student with disabilities.
Moving Forward
School districts must understand their obligation to provide students with disabilities a FAPE, and be careful not to undertake any action, such as entering settlements or agreeing to an IEP that waives or denies a student their right to a FAPE. This obligation applies even if the parent(s) propose any such settlement or agreement. Essentially, school districts must always assess whether their own proposals and those from parents, both at IEP meetings or in the context of legal proceedings, will provide a student with a FAPE, and not propose or agree to any action that is contrary to applicable laws or regulations. This must be done to ensure that no action that might cause a FAPE denial is undertaken by school districts