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NJDOE Finally Releases Notice Stating Permissibility of Delivering Related Services to Special Education Students through Remote Technology

By on April 2, 2020 in Special Education/504 with 0 Comments

Editor: Sanmathi (Sanu) Dev, Esq.

With most schools in New Jersey closed for nearly two weeks, and all closed since Governor Murphy issued Executive Order 107 on March 21, 2020, school districts across the State have been awaiting further guidance from the New Jersey Department of Education (“NJDOE”) on the important issue of whether NJDOE would permit the provision of related services to special education students through remote technology and distance learning during this period of school closure due to the COVID-19 virus.  That much-awaited guidance came yesterday, as Commissioner of Education Dr. Lamont Repollet issued a letter titled “Notice of Rule:  Waiver/Modification/Suspension.”  Effective April 1, 2020, the notice temporarily suspends earlier regulatory guidance from the Office of Special Education which had purported to prohibit the remote provision of related services to special education students through the use of electronic communications or remote technology.  “Related services” are services such as speech/language therapy, occupational therapy, physical therapy, individual or group counseling, and other forms of services which are necessary to enable a special education student to benefit from special education and are spelled out in each child’s individualized education program (“IEP”).

Despite statements in the Commissioner’s new notice letter that “[c]urrently, Department regulations do not permit school districts or other educational agencies to” deliver related services remotely, that earlier prohibition was actually done through the issuance of non-binding policy guidance in a Memorandum from the Assistant Commissioner on June 4, 2019, which can be found here, and had not been done through the normal regulatory rulemaking process.  With this new notice letter, the Commissioner walked back that earlier guidance, stating:  “[D]uring an extended public health-related school closure, related services to students with disabilities shall be provided through electronic communications, virtual, remote or other online platforms, as appropriate and as required by the student’s IEP to the greatest extent possible.”  This updated guidance follows on the heels of federal guidance issued by the U.S. Department of Education on March 21, 2020, which had already stated that the provision of a free and appropriate public education (“FAPE”) to special education students under the Individuals with Disabilities Education Act (“IDEA”) “may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.” 

With the federal and state guidance now in alignment, most school districts are now rolling out plans for remote provision of related services to special education students.  Districts should keep the following best practices in mind, as they do so:

  • Determinations about which related services can be effectively provided through remote means should be practical and student-driven, considering the capabilities and limitations of remote technologies to be used.  Some related services, such as speech therapy or individual counseling, may be implemented through remote means more readily and effectively than others, such as physical therapy, for example.
  • The educational needs of each student should be taken into account in order to make individualized determinations about whether remote related services can be appropriately implemented on a case-by-case basis.  Some students may be able to obtain a meaningful educational benefit through the implementation of remote related services while others might not, depending on the nature or extent of their disability and the degree to which the services can be effectively modified.  District IEP teams should consider the overarching legal standard for FAPE to special education students and ask: “Is the provision of remote related services reasonably calculated to enable this student to achieve a meaningful educational benefit, in light of the child’s unique needs and circumstances, during a time when families are confined to their homes?”
  • Districts are encouraged to seek the informed consent of parents prior to implementing remote related services.  Many districts are sending information to families via e-mail, or physical letters for those families without internet access, providing them with information about the remote provision of related services and requesting their consent.
  • To avoid confidentiality breaches and privacy issues under the Family Educational Rights and Privacy Act (“FERPA”), school districts should use caution in implementing group related services in an environment where it may be impossible to ensure parents are not able to view other students through video-conferencing during related services sessions.  All families should be advised that audio or video recording of related services sessions is prohibited, in order to avoid inadvertently creating privacy or student records issues.
  • Districts should do their utmost to ensure they implement remote related services in a manner that allows them to track and document in a services log the frequency and duration at which remote related services are provided.  Good documentation will ensure the district has an accurate record of the extent to which services were or were not able to be provided remotely during the closure period.

School districts should still be aware of the possibility of owing compensatory related services, in some cases, at the conclusion of the school closure.  School districts with questions regarding the implementation of remote related services during this time should contact their board attorneys.

Finally, while the permissibility of remote related services has now been endorsed by NJDOE, the early drafts of revisions to State regulations all purport to permit this “during an extended public health related school closure,” but do not speak to the period once the emergency ends.  It seems likely that NJDOE may try to limit the applicability of its rules to only the temporary span of the closures due to this crisis.  Yet, observers are beginning to wonder what will happen once families, special education students, child study teams, related service providers, and special educators get used to effectively implementing related services through remote means as the unintended by-product of this public health emergency.  The Commissioner’s notice recognized that making these services available for remote learning to general education students, but not to special education students, presented an insurmountable equity issue.  A question arising in the minds of many special educators around the State will be, “What will be the ‘new normal’ once things are back to normal?”  In many cases, special education students with certain unique needs may well benefit from the implementation of their related services remotely, even if they were not confined to their homes by executive order.  Was this is just a temporary flexibility being permitted during an extraordinary period of health-related school closings, or are we on the verge of expanding what is possible for the effective delivery of related services in a broader sense?  Will child study teams and parents have the freedom to make these determinations for themselves at the IEP meeting table, subject to review by administrative law judges, through the due process procedures provided for under the IDEA?  Or will the NJDOE try to control these issues from Trenton through carefully crafted limitations added to the regulatory language?  In the coming months, these questions are sure to generate further discussion and debate.

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Cameron R. Morgan

About the Author

About the Author:

Mr. Morgan has served the public school districts of the State of New Jersey in the specialized area of school law, representing boards of education in all aspects of their legal needs, with a focus on general counsel services, civil litigation, special education, administrative law, collective negotiations, labor and employment, and appellate practice. He has served as Board Solicitor to dozens of school districts, guiding district administrators through the diverse range of issues affecting the public schools, from personnel matters, tenure cases, and the range of issues that frequently arise at public board meetings, to student disciplinary matters, residency disputes, and homelessness issues, to complex matters involving the budgetary process or First Amendment rights.

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