Gov. Phil Murphy recently signed legislation extending the period of time a parent, guardian, or local educational agency has to request a due process hearing regarding the education of a child with disabilities during a COVID-19 school closure or during periods of virtual, remote, hybrid, or in-person instruction. The extension is intended to give parents and school districts additional time to resolve disagreements regarding the provision of special education services and for the filing of due process claims.
Due Process Hearings under the IDEA
Pursuant to the Individuals with Disabilities Education Act (IDEA), a parent or local educational agency may request an impartial due process hearing when there is a disagreement regarding the identification, evaluation, or educational placement of a child with disabilities, or the provision of a free and appropriate public education. An impartial due process hearing is required to be requested by a parent, guardian, or local educational agency within two years from the date the parent, guardian, or agency knew, or should have known, about the alleged action that forms the basis for the complaint.
The IDEA allows each state to set its own time limitations for requesting a hearing. Similar to the timeline set by the IDEA, New Jersey State regulations establish that a party has two years from the date a party knew, or should have known, about the alleged action that forms the basis for the complaint to file a petition for a due process hearing.
Key Provisions of Senate Bill 905
The new law, Senate Bill 904 (SB 905) extends the two year time limitation and allows a parent, guardian, or school district to file a request for a due process hearing regarding the identification, evaluation, educational placement, or the provision of a free and appropriate public education of a child with a disability during a COVID-19 school closure or a period of virtual, remote, hybrid, or in-person instruction occurring between March 18, 2020 and September 1, 2021 at any time prior to September 1, 2023.
The law further requires schools districts to hold an IEP team 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. Meetings must be held not later than December 31, 2022, or earlier if requested by a parent or guardian. SB 905 further provides that a parent or guardian may file for a due process hearing at any time, up to and including September 1, 2023, to challenge the determinations of the IEP team if the parent or guardian disagrees with the determinations.
As set forth in SB 905, if a school district has held an IEP team meeting prior to its effective date and discussed the need for compensatory education and services for a student with a disability who had an IEP at any time between March 18, 2020 and September 1, 2021, and documented the IEP team’s determinations as required by the law, it is not required to hold an additional IEP meeting, unless agreed to by a parent or guardian and the school district. Additionally, the new law bars a parent or guardian who filed for mediation or a due process hearing with respect to the need for compensatory education and services for a student with a disability who had an IEP at any time between March 18, 2020 and September 1, 2021 from filing the same claims for the same time period addressed in that filing if the matter was resolved as a result of the mediation or a settlement agreement executed by the parties or a judicial or administrative order.
The legislation took effect immediately and is retroactive to March 18, 2020.
It should be noted that in a guidance letter issued by the U.S. Department of Education dated January 10, 2022, it was stated that “the decision to provide compensatory education when there is a disruption in the provision of educational services, and the nature and amount of the special education and related services that are to be provided as compensatory education, is an individualized determination made by the IEP Team.” The primary question to be asked and answered and documented in the IEP, is whether, as a result of the school closure precluding the provision of all services contained in the IEP by the district, the student lost skills or failed to acquire skills and thus did not receive educational benefit during that time period.
If you have legal concerns related to the new special education law and how it may impact your school district, I encourage you to contact Partner & Chair of Scarinci Hollenbeck’s Special Education Law group, Nathanya G. Simon, at 201-896-4100.