Can NJ Schools Still Provide Special Education Services Remotely?

Can NJ Schools Still Provide Special Education Services Remotely?

The New Jersey Department of Education rescinded the COVID-19 pandemic-related emergency rule allowing special education services to be provided virtually...

Effective September 8, 2021, the New Jersey Department of Education rescinded the COVID-19 pandemic-related emergency rule allowing special education services to be provided virtually. However, school districts may continue to provide virtual-related services to special education students until January 11, 2022.

April 2020 COVID-19 Emergency Rule

New Jersey law, N.J.A.C. 6A:14, ensures the right of students with disabilities to receive a free appropriate public education in the least restrictive environment as required by the Individuals with Disabilities Education Act (IDEA). Chapter 14 also ensures that all decisions regarding students with disabilities are made on an individualized basis.

In April 2020, the New Jersey Legislature amended the law (N.J.A.C. 6A:14-1.1(d)5) so that special education services may be provided through electronic communications, virtual, or other online platforms as appropriate and as required by a student’s individualized education program (IEP), during an extended public-health related school closure.

The amendments (N.J.A.C. 6A:14-3.9(a)) further provided that related services, including counseling, occupational therapy, physical therapy, school nurse services, recreation, social work services, medical services and speech-language services, may be provided through telemedicine and telehealth or through electronic communications, which include virtual, remote, or other online platforms, as appropriate and as required by the student’s IEP to the greatest extent possible. Additionally, the changes (N.J.A.C. 6A:14-5.2(f)) permitted NJDOE-approved clinics/agencies to deliver related services virtually or through online platforms.

Recission of the Emergency Rule

After the declared COVID-19 public health emergency expired this summer, the New Jersey Legislature enacted P.L. 2021, c. 103, which provides that rule waivers/suspensions/modifications adopted under the authority of Executive Order 103 will expire in January 2022. The law further provides that state agencies may elect to terminate rule waivers/suspensions/modifications prior to the expiration date. 

The New Jersey Department of Education (NJDOE) exercised that authority in rescinding the temporary rule change under N.J.A.C. 6A:14-1.1(d)5, which permitted special education instruction provided to students with disabilities through electronic communications, virtual or other online platforms. In support, the NJDOE cited that all students are returning to full in-school learning for the 2021-2022 school year.

In terminating the rule, the NJDOE stated that IEP teams, which include the student’s parents/guardians, retain the flexibility to make individualized determinations to meet the unique needs of the student when fully documented. The NJDOE also left 6A:14-3.9(a) and 6A:14-5.2(f) in effect until January 11, 2022, at which time they will expire. Accordingly, school districts will maintain the flexibility to deliver related services, such as speech-language, and counseling, through telehealth or other virtual or online platforms. The NJDOE is also allowing NJDOE-approved clinics/agencies to continue to deliver related services virtually or through online platforms.

If you have legal concerns related to providing special education services during the pandemic, we encourage you to contact a member of Scarinci Hollenbeck’s Education Law Group.

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