Gov. Phil Murphy recently signed legislation requiring boards of education to consider offering additional or compensatory special education and related services…
On 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.
New Law Extending Special Education Eligibility
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:
Members of the IEP Team must consider providing the education and services included in a student’s IEP to students attaining the age of 21 during the 2020-2021 school year, the 2021-2022 school year, and the 2022-2023 school year for an additional school year, provided that the parent of the student and the IEP team determine that the student requires additional or compensatory special education and related services, including transition services.
Students attaining the age of 21 during the 2020-2021 school year are eligible for special education and related services in the 2021-2022 school year; students attaining the age of 21 during the 2021-2022 school year are eligible for special education and related services in the 2022-2023 school year; and students attaining the age of 21 in the 2022-2023 school year are eligible for special education and related services in the 2023-2024 school year.
Unless otherwise provided in the student’s IEP or as ordered by a hearing officer, complaint investigation, or court of competent jurisdiction, a student is not eligible to receive special education and related services beyond the school year in which the student attains the age of 22.
Students receiving special education and related services, including transition services, must be afforded the same rights, privileges, and remedies provided to students with disabilities pursuant to State law, State Board of Education regulations concerning special education, and the federal Individuals with Disabilities Education Act (IDEA).
Any disputes that arise with respect to the provision or nature of services provided to a student with disabilities in the additional year may be addressed, as determined by the parent of the student, by either: mediation; a written request for a complaint investigation submitted to the Director of the Office of Special Education Policy and Dispute Resolution in the Department of Education; or a special education due process hearing pursuant to the provisions of applicable federal and State law.
The special education and related services provided under the new law, to the extent permitted by federal law, will be paid for from the monies received by the State or a school district under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, the federal Coronavirus Response and Relief Supplemental Appropriations (CRRSA) Act, 2021, the federal American Rescue Plan (ARP) Act, or any other federal funding provided to address the impact of the coronavirus pandemic on elementary and secondary schools as it becomes available. To the extent that these federal funds don’t cover the costs borne by school districts, the State must appropriate funds as necessary from the Property Tax Relief Fund to reimburse school districts.
Department of Education Memo Regarding Extension of Special Education Services
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 questions, please contact us
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 Groupat201-896-4100.
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