New Jersey Assembly Bill A3904, permitting the use of virtual or remote instruction to meet the minimum 180 day school year requirement upon Commissioner approval of a plan and requiring all employees, private schools with approved plans, and contracted services providers be paid as if school is open, was approved on April 14, 2020.

This legislation modifies the terms and conditions a school district must follow in order to receive State aid during a declared state of emergency, public health emergency or a directive by the appropriate health agency or officer to institute a public health-related closure of more than three days.

How Will Virtual Instruction be credited towards the 180 required school days?

  • Virtual or remote instruction plans must be approved the Commissioner of Education according to criteria to be established
  • Plans must be submitted to the Commissioner within 30 days in advance of the commencement of virtual instruction but may be retroactively approved.
  • Annual plan submission will be required.
  • Commissioner will be providing more guidance. 

Who has authority to implement a school’s approved plan?

  • The Superintendent of schools has the authority to implement the school’s approved plan under the conditions allowed.

Can virtual and remote related services be provided?

  • To the greatest extent practicable related services may be delivered to students with disabilities through the use of electronic communication or a virtual or online platform and as required by the student's Individualized Education Program (IEP). 

How will virtual instruction impact public employees compensation?

  • All public school employees be paid as if the school facilities remained open for any purpose and for any time lost as a result of school closures or use of virtual or remote instruction.
  • For employees under a Collective Bargaining Agreement, additional compensation, benefits, and emoluments may be negotiated for additional work performed.

How are contracts with private schools to be paid?

  • Private schools providing remote instruction approved by the Commissioner continue to be paid according to the tuition contract. If a program runs for less than 180 days, tuition is reduced accordingly.

How are contracts with contracted service providers to be paid including educational services commissions, county special services school districts, and jointure commissions, shared services agreements and cooperative contracts entered into with any other public entity to be paid?

  • School Districts are to continue payments of benefits, compensation, and emouluments pursuant to terms of contract as if school facilities had remained open.
  • School districts may make all reasonable efforts to renegotiate a contract in good faith
  • School district may direct contracted services providers to provide services which may reasonably be provided and are within the general expertise or service provision of the original contract
  • Negotiations shall not include indirect costs such as fuel or tolls
  • Contracted service provider shall reveal to the school district whether the entity has insurance coverage for business interruption covering work stoppages.
  • A school district shall not be liable for the payments of benefits, compensation, and emoluments pursuant to the terms of a contract – which otherwise would not have been provided had the school facility remained open.

A school district is not required to make payments to a party in material breach of a contract if the breach was not due to a closure resulting from a state of emergency.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Carolyn Chaudry, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.