
Nathanya G. Simon
Partner
201-896-7223 nsimon@sh-law.comClient Alert
Author: Nathanya G. Simon
Date: June 28, 2021
Partner
201-896-7223 nsimon@sh-law.comOn June 16, 2021, Gov. Phil Murphy signed legislation requiring boards of education to consider offering additional or compensatory special education and related services, including transition services, for a maximum of one additional year to students with disabilities following a determination made by the student’s Individualized Education Program (IEP) team that the student requires such additional or compensatory special education and related services. The new law aims to address the loss of learning that special education students may have suffered in light of the COVID-19 pandemic.
Generally, boards of education are required to provide a free, appropriate public education, in accordance with an individualized education program (IEP), to students with disabilities age three through 21. If a student turns 21 years of age during the school year, defined as the period between July 1 and June 30, the student is entitled to finish the school year. On June 30 of the student’s final school year, the student is no longer eligible for special education and related services. Accordingly, absent this law, no additional services were available as a matter of law.
The new law, P.L.2021, c.109 (S-3434), mandates that boards of education review and consider providing special education and related services for students exceeding age of eligibility in some circumstances. Below are several key provisions of the new law:
On June 16, 2021, the New Jersey Department of Education (DOE) issued a memorandum intended to provide guidance to school districts, students, and parents/guardians of students with disabilities regarding the new law. The guidance outlines the key provisions of P.L.2021, c.109 (S-3434) and its impact on special education and related services for students with disabilities.
The DOE memo also emphasizes that the new law does not guarantee that all students exceeding their eligibility will receive additional or compensatory services. “Consistent with Reopening Guidance issued by the United States Department of Education (USED), the March 3, 2021 NJDOE Compensatory Education Guidance, and relevant case law, the newly enacted law emphasizes the role of the student’s IEP team in determining the individual student’s need for compensatory education or services, as well as the type, frequency or location of those services,” the memo states.
The DOE memo also notes that students or their parents/guardians may seek dispute resolution if there is disagreement with the IEP team’s determination that the student does not require additional or compensatory education, or if there is disagreement about the IEP team’s proposed type, frequency or location of additional or compensatory education. “Dispute resolution options include mediation conferences, due process hearings, and/or complaints alleging a violation of special education law,” the DOE states.
Additionally, a filing for emergent relief seeking an order of “stay put” and additional services may also be filed. At such time, specific areas of loss that require compensatory services will be considered by an Administrative Law Judge. Lastly, it is recommended that IEP teams carefully review the goals and objectives and transition services, CBI and other services that are in the program for those students turning 21 during the 2021-2022 and 2022-2023 school years and target those over the remaining eligible years of education entitlement.
If you have legal concerns related to the new special education and how it may impact your school district, we encourage you to contact Nathanya G. Simon, Partner & Chair of the Scarinci Hollenbeck’s Special Education law practice group or a member of Scarinci Hollenbeck’s Education Law Group at 201-896-4100.
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