New Law Regarding Special Education Due Process Extensions and Need for Compensatory Education and Services Notification in IEPs
On March 3, 2022, legislation was signed into law by Governor Murphy extending the period for filing special education due process petitions related to COVID-19 school closures and periods of virtual, remote, hybrid, or in-person instruction. This legislation intends to fill gaps created by the pandemic regarding special education students who may have missed out on significant services interrupted by remote learning and other unforeseeable events. This law will take effect immediately and is retroactive to March 18, 2020.
The law permits families to file a claim for a due process hearing until September 1, 2023. The legislation supplements chapter 46 of Title 18A of the New Jersey Statutes. More specifically, the law permits a parent, guardian, or local education agency to request a due process hearing pertaining to the identification, evaluation, educational placement, or the provision of a free and appropriate public education of a child with a disability during the COVID-19 school closure or a period of virtual, remote, hybrid, or in-person instruction accruing between March 18, 2020 and September 1, 2021. The deadline to file a due process petition was March 18, 2022. However, the legislature attempted to fast track the extension due to the perception that families of special education students lacked the information to timely file a request by the March 2022 deadline.
Moreover, federal law provides for “compensatory education” to enhance eligible students’ education. This law will obligate local education agencies to hold an IEP meeting to discuss the need for compensatory education and services for every student with a disability who had an IEP at any time between March 18, 2020 and September 1, 2021. The IEP meeting, as advised under the law, must occur no later than December 31, 2022, or earlier if requested by a parent or guardian. The purpose of the meeting should be included in the notification to the parent or guardian.
In addition to the mandatory IEP meeting, a parent or guardian shall receive written notice following the meeting in accordance with N.J.A.C. 6A:14-1.1 et seq. The written notice shall include the IEP team’s determinations pertaining to the need for, and, if applicable, the provision of, such education and services. All compensatory education and services determinations made by the IEP team will be documented in the IEP in compliance with N.J.A.C. 6A:14-1.1. et seq. The compensatory education and services deemed appropriate by the IEP team may include frequency, duration, location, and agreed upon time period for delivery of such education and services deemed appropriate by the team. A parent or guardian shall have the ability to file a due process hearing based on these determinations or lack thereof at any time, up to and including September 1, 2023.
The legislation does not compel local education agencies that have previously held an IEP team meeting prior to the effective dates of the legislation, where the potential for the compensatory education and services for a student with a disability who had an IEP during the COVID-19 pandemic was discussed, and if determinations based on the previously held meeting were documented, and following, the parent or guardian was notified. Under these circumstances, the IEP team’s determinations stemming from the meeting may still be the basis of a challenge at any time, up to and including September 1, 2023. If a mediation or due process hearing was filed by a parent or guardian with respect to the need for compensatory education for a student with a disability who had an IEP during the pandemic, and the matter was resolved as a result of a proceeding or settlement agreement executed by the parties or a judicial or administrative order, the parent or guardian is barred from filing the same request based on the same claims addressed in the decision or settlement.
At this time, the Department of Education has not issued additional guidance or recommendations. S290 will require revisions to existing meeting notices as well as IEP documents in order to reflect a school district’s compliance with same.
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. Questions about individual issues should be addressed to Athina L. Cornell of Sciarrillo Cornell at acornell@sciarrillolaw.com or Deirdre D. Macchia at dmacchia@sciarrillolaw.com