School Law Special Committee

(Editor’s note: This is an edited excerpt from a column written by New Jersey Lawyer special editor Mary Frances Palisano in the April 2022 edition on Special Education. NJSBA members can read the full edition by logging on to njsba.com.)

For the first time in almost 20 years, New Jersey Lawyer dedicates an edition to special education law. The Individuals with Disabilities Education Act (IDEA) defines special education as “specially designed instruction at no cost to parents, to meet the unique needs of a child with a disability.” According to the New Jersey Department of Education’s most recent collection report, there are approximately 238,000 classified students receiving special education in New Jersey. As reflected in the April 2022 edition’s articles, special education is critical, so that all students have the opportunity to learn and appropriately progress.

In the wake of the COVID-19 health crisis, this topic could not come at a better time to help shine a light on this important subject where, even before the pandemic, there were issues concerning the delivery and effectiveness of special education programs and services for many New Jersey students.

The pandemic has been extremely challenging for many New Jersey students with disabilities who receive special education services, and their families, as remote and hybrid learning platforms presented significant educational and developmental hurdles. Now that schools have reopened and children are being assessed, learning loss and mental health issues are widespread concerns in the special education community. The impact of the COVID-19 pandemic and the resulting learning loss and regression will affect special education students for years to come, but there is hope – New Jersey’s special education system is getting some much-needed attention.

Gov. Phil Murphy signed into law several important pieces of legislation. First, on June 16, 2021, a bill (S-3434/A-5366, P.L.2021, c.109) was approved permitting certain special education students eligibility for an extra year of school. Those who may be eligible include students who would otherwise age out of New Jersey’s educational system because they will turn 21 during the 2020-21, 2021-22, or 2022-23 school years. The New Jersey Department of Education (DOE) estimated that about 8,700 New Jersey students will age out of their special education services during the applicable time frame.

Then, on June 30, 2021, Murphy signed legislation (A-5365/S-3872, P.L.2021, c.141) that permitted a parent or guardian to request that a student repeat a grade during the 2021-2022 school year.

Next, and most recently, on March 3, 2022, legislation (A-1281/S-905, P.L.2022, c.2) was signed into law, giving parents until Sept. 1, 2023, to file a due process petition with the Office of Administrative Law (OAL) relating to compensatory education claims in connection with COVID-19 school closure or period of remote, hybrid, or in-person instruction between March 18, 2020, and Sept. 1, 2021. The new law also requires school districts to hold an Individualized Education Program (IEP) team meeting by Dec. 31, 2022, 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 Sept. 1, 2021.

There is also a backlog of due process cases in the OAL, which New Jersey is attempting to rectify with legislation (S-2160/A-5701, P.L.2021, c.390) enacted on Jan. 18, 2022, establishing a special education unit within the OAL requiring completion over the next two years.

The 14 articles in the latest edition of New Jersey Lawyer offer a comprehensive compilation of special education’s hottest topics, including compensatory education, inclusion, negotiation of settlements, and unilateral placements. The edition also offers practitioners guidance on home instruction, handling matters involving emotional disabilities, the complaint resolution process, obligations concerning struggling readers, and representing college students with special needs.