Special Education/504

By: Angela Reading, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

The Individuals with Disabilities Education Act (“IDEA”) and New Jersey law allow school districts to use two methods to determine specific learning disability (“SLD”) of a student who may qualify for special education: the severe-discrepancy approach and the response-to-intervention approach (“RTI”). The severe-discrepancy method examines whether there is a severe discrepancy between the student’s current achievement and intellectual ability in one or more areas of academic aptitude. N.J.A.C. 6A:14-3.5(c)(12)(i). The RTI method applies intensive and individualized instruction and evaluates the child’s progress in response to that intervention. 20 U.S.C. § 1414(b)(6)(B); N.J.A.C. 6A:14-3.5(c)(12)(ii).

On July 1, 2022, the Third Circuit Court of Appeals in J.M and E.M o/b/o C.M. v. Summit City Board of Education reaffirmed that school districts may use RTI rather than a severe discrepancy approach to determine SLD eligibility.

In September 2015, when C.M. was in first grade, he started exhibiting behavioral and academic issues. The district’s multidisciplinary intervention team began using an RTI approach to improve C.M.’s performance. In October 2015, C.M.’s parents supplied an independent educational evaluation (“IEE”), which diagnosed C.M. with an SLD based on the severe-discrepancy approach. The district evaluated C.M. for special education and related services at the parents’ request.

In February 2016, the district determined that C.M. was ineligible for special education and related services. In support of their decision, the district relied on the positive effects of the strategic behavioral and academic interventions, which reduced the incidents of poor behavior and improved C.M.’s progress in reading and math. The district noted that C.M. had some areas of weakness based on his aptitude scores. However, because he had positively responded to the interventions, they decided to continue implementing those in lieu of special education and related services. In April 2017, the district found C.M. eligible for special education after he was diagnosed with autism and ADHD.

C.M.’s parents filed for due process under the IDEA and Section 504 of the Rehabilitation Act, asserting that the district violated its “child-find duty” by erroneously concluding that C.M. did not have an SLD as of February 2016. The parents’ claims did not succeed at the administrative level or in the District Court. The parents appealed the District Court’s ruling to the Third Circuit Court of Appeals.

The Third Circuit held that the district did not violate its “child-find duty” by concluding that C.M. did not have an SLD. The Court found that the intervention and evaluation teams consisted of “trained and knowledgeable personnel” as required by the IDEA. 20 U.S.C. § 1414(b)(3)(A)(iv). The Court also found that teams gained relevant information about C.M.’s educational needs through a recognized method — incremental, potentially escalating interventions based on different tools and strategies. 20 U.S.C. § 1414(b)(3)(C), (b)(2)(A). Having met the relevant statutory requirements and having observed that C.M.’s classroom behavior and academic performance improved in response to interventions, the Court held that the district met its “child-find” obligations.

The Court noted that although C.M.’s measured achievement in three areas would have qualified him as having an SLD under the severe-discrepancy approach, neither the IDEA nor New Jersey law requires districts to use that approach — or even consider the results of that approach for child-find purposes.

This case illustrates that if a district can demonstrate a child responds well and makes meaningful progress using RTI, it likely will fulfill its child-find obligation.

By: Becky Batista, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On March 17, 2022, the U.S. District Court of New Jersey affirmed the ruling of an Administrative Law Judge (“ALJ”) in S.W. v. Elizabeth Board of Education that “transportation to and from the corner bus stop rather than from the disabled child’s home did not rise to the level of a denial of a free appropriate public education (“FAPE”), did not significantly impede the parents’ opportunity to participate relative to his education and did not cause a deprivation of educational benefits.”

In S.W., the parents of a disabled student sought compensatory education and a determination that the District denied their child a FAPE. For two consecutive academic school years, the student had an individualized education program (“IEP”) that reflected door-to-door transportation. Despite this provision in the IEP, each school year the parents were notified via letter from the District that the student’s designated bus stop location would be on the corner of their dead-end street and not their home. The parents would drive the student to the corner where he sat in the car until the bus arrived. After school, his parents would either pick him up or meet him at the corner. The parents did not dispute this discrepancy until September 2019 – three years later.

The parents’ attempt to reinstate the door-to-door transportation services with the District was unsuccessful. As a result, the parents filed a complaint with the Office of Special Education Policy and Dispute Resolution of the New Jersey Department of Education (“SPDR”). SPDR found that the district was non-compliant with the IEP as written and corrective action was required. Following these findings, the parties met for an IEP meeting in an attempt to resolve the issue of transportation for the student.  The meeting was unsuccessful and the parents filed for due process.

The ALJ heard the matter and rendered a final decision, concluding that the District did not deny the student a FAPE. The ALJ held that the parents were properly notified of the designated bus stop, and the District provided the student with transportation to and from school on the school bus, albeit from the corner bus stop. Thus, the student had access to an education. The ALJ also concluded that there was no evidence that an at-home stop was required to access an appropriate education. The parents appealed the ALJ’s decision to the District Court.

The District Court viewed the issue as a question of whether the District failed to properly implement the IEP when its bus driver picked up the disabled student at the corner rather than in front of his house, and if so, with what consequence. The Court concluded that the District failed to implement the transportation provision of the IEP, but such failure was de minimis and did not deprive the student of a FAPE. The Court explained that IDEA provides the District with flexibility to implement an IEP, and such flexibility is necessary here, where traffic safety concerns are implicated. The District’s policy is never to have a bus stop on a dead-end street that would require “backing” the bus, regardless of the type of bus. In addition, the Court noted that the student had access to an education and that “the medical and other evidence reviewed by the ALJ did not undermine the appropriateness of a corner bus stop.”  The Court stated that the door-to-door transportation was neither a substantial nor significant provision in the IEP. 

The parents also claimed that the change in transportation from door-to-door to the corner also changed the student’s educational placement in violation to the “stay put” provision of the IDEA. The “stay put provision” mandates that the child shall remain in his then-current educational placement during the pendency of any proceedings. However, the Court concluded that there was no evidence that pick-up/drop-off from the corner had a signification effect on the student’s learning experience, and therefore, the District did not violate the “stay put” provision of the IDEA.

By: Becky Batista, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On March 3, 2022, the U.S. District Court of New Jersey approved a settlement agreement between a class of incarcerated students with disabilities and the New Jersey Department of Corrections (“DOC”) and New Jersey Department of Education (“DOE”) in Adam X. v. New Jersey Department of Corrections.

The plaintiffs filed a civil rights class action lawsuit on behalf of incarcerated disabled students in DOC adult prisons. These students were eligible for special education. They alleged that the DOC and DOE failed to provide special education or related services and equal education access to students with disabilities. As a result, they alleged that the students were denied a free appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”). They further alleged that the DOC and DOE denied disabled students equal access to the educational services and benefits offered and overseen by DOC and DOE in state prisons throughout New Jersey in violation of Title II of the Americans Disabilities Act (“ADA”) and Section 504.

Prior to discovery, the Court appointed, with the Parties’ consent, a neutral and independent expert to review and evaluate both the DOC’s and DOE’s policies, practices, and procedures related to special education. Once the parties received the independent expert’s report, they entered into settlement negotiations. The parties finalized and signed the settlement agreement after over three years of negotiations. Finally, they requested the court to approve their settlement agreement.

Under this agreement, the DOC and DOE will modify their policies and procedures to ensure the development and implementation of individualized education programs (“IEPs”) and Section 504 plans for each eligible student, provide individualized transitions services, and provide at least four hours of instruction per day in a regular classroom setting to students with disabilities. The DOE must develop corrective action plans for the DOC for areas of non-compliance and will monitor to ensure implementation. Additionally, the agreement established a compensatory education program for eligible class members. The settlement agreement also includes other procedural provisions and provides for attorney’s fees.

A class action settlement may not be approved without a determination by the court that the proposed settlement is fair, reasonable, and adequate. The court considers the following: (1) complexity, expense, and likely duration of litigation; (2) the reaction of the class; (3) the stage of the proceeding and the amount of discovery completed; (4) the risk of establishing liability and damages; and (5) the risk of maintaining the class through trial.

The court recognized that this matter was not in its infancy. The matter was filed over five years ago and the parties negotiated at an arm’s length of three years with 30 settlement conferences and the exchange of 20,000 pages of documents before filing the agreement. Additionally, an independent expert spent 95 hours on-site evaluating the prisons’ special education-related policies and procedures, and there has been no objection from the any member of the class. The court also acknowledged that while it is unclear which party would be more likely to establish liability, the settlement agreement avoids time consuming and costly nature of litigation.

The court approved the settlement agreement in full, finding it was fair, adequate, and reasonable and would benefit the entire class by correcting violations and providing remedial opportunities for those already affected.

By: Becky Batista, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

The Individuals with Disabilities Education Act (“IDEA”) permits any aggrieved party of an administrative finding to file an appeal in federal district court. Typically, an administrative finding is a final decision by an Administrative Law Judge on the substance and merits of an underlying due process petition brought by parents of a special education student against a public school district. On March 16, 2022, the Third Circuit Court of Appeals issued a precedential opinion in G.W. v. Ringwood Board of Education clarifying that the entry of a “Decision Approving Settlement” in an IDEA matter before the New Jersey Office of Administrative Law (“NJOAL”) does in fact satisfy the jurisdictional requirement permitting judicial review in district court. 

In G.W. v. Ringwood Board of Education, parents of a student with disabilities filed a due process petition against their school district under the IDEA. The matter was scheduled before an Administrative Law Judge (“ALJ”). Prior to the scheduled due process hearing on the substance and merits of the case, the parties voluntarily entered into a settlement agreement. The ALJ then issued a “Decision Approving Settlement,” a common practice resolving special education disputes before the NJOAL. The parents later repudiated the settlement agreement, filed a motion before the ALJ to “set aside the agreement,” and filed a complaint in federal district court alleging that “they did not knowingly and voluntarily enter into the agreement.”

The federal district court considered this matter and raised the issue of subject matter jurisdiction sua sponte. The district court characterized the parents’ complaint as arising out of contract law, and denied the motion without prejudice. The court questioned whether the ALJ’s findings of a voluntary settlement agreement resolving all disputes between the parties satisfied the jurisdictional requirement of the IDEA. The district court ultimately concluded that jurisdiction was not provided by the provisions of the IDEA regarding the enforceability of settlements in federal court – such jurisdiction would be in state court. It further held that the decision was not based on “substantive grounds” and dismissed the matter without prejudice for lack of subject matter jurisdiction. The parents appealed the dismissal of their case to the Third Circuit.

The Third Circuit reversed the district court’s decision and remanded the matter pursuant to its opinion. The Court explained that Section 1415(f) of the IDEA permits challenges on due process hearing decisions, and this section “directs that ‘a decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education (“FAPE”).’” The Court determined that the ALJ’s Decision Approving Settlement was a substantive decision in this case by highlighting that the ALJ’s findings included: “(1) what the issues raised in the due process complaint were; (2) that there is an agreement whose terms resolve the issues raised; (3) that the parties mutually assented to that settlement agreement; and (4) that the agreement’s material terms comply with the IDEA’s mandate that participating school districts provide students with disability a FAPE.” The Court also mentioned that the ALJ’s final order in this matter incorporated the agreed terms, which addressed the provision of the child’s FAPE, and informed the parties of their rights to appeal.

The Court plainly stated that a party is considered aggrieved “by the findings and decision of an ALJ when they articulate a challenge to the ALJ’s basis for entry of a final administrative order.” As a result of this case, voluntary special education settlement agreements which are approved by an ALJ of the NJOAL are now appealable to federal district court.

By: Sean P. Dugan, Law Clerk
Editor: Sanmathi (Sanu) Dev, Esq.

On June 8, 2021, the U.S. District Court of New Jersey affirmed the ruling of an Administrative Law Judge (“ALJ”) in I.G. et al. v. Linden City Board of Education that the parents of a student with a disability who unilaterally placed their child in a private school were not entitled to tuition reimbursement.

In Linden City, the parents of the student sought reimbursement for the private school tuition. Under the Individuals with Disabilities Education Act (“IDEA”), a parent who does not believe that their child is being provided a free appropriate public education by the school district may enroll their child in a different school and seek tuition reimbursement for the alternative placement if certain criteria are met. Courts can reduce or deny the amount of tuition reimbursement if, “1) the parents did not inform the district at the most recent [individualized education program] IEP meeting that they were rejecting the IEP or their intention to enroll the child in an out of district placement…; 2) the parents failed to provide written notice to the district at least 10 business days prior to removal of their intent to unilaterally remove the student and seek reimbursement; 3) the district proposed a reevaluation prior to the removal and the parents did not make the student available for reevaluation; or 4) a judicial body finds the parental actions unreasonable.”

On July 24, 2020, the ALJ denied the parents’ request for tuition reimbursement for failing to act reasonably. The parents met with the school on August 14, 2019 at an IEP meeting and did not reject the IEP proposal. Two days later, the parents’ counsel notified the school district that they rejected the IEP and would unilaterally place their child in a private school if the school did not do so, despite already enrolling the child at the school. The parents also did not state their reason for rejecting the IEP and  failed to communicate with the school during the IEP process.

The Court agreed with the ALJ’s assessment that the parents failed to participate in a collaborative process with the school district, stating, “the IDEA was not meant to fund a private placement ‘when parents have not given the public school a good faith opportunity to meet its obligations.”’

In a precedential opinion sure to make waves in the special education community, on September 17, 2020, in D.S. v. Trumbull Board of Education, 120 L.R.P. 133 (2d Cir. 2020), the Second Circuit Court of Appeals held that functional behavioral assessments (“FBAs”) of special education students conducted by a public school district are not “evaluations” capable of triggering a parent’s right to request an independent educational evaluation (“IEE”) from the district by an outside evaluator, at public expense.  The case puts front and center an issue of first impression that has rarely been addressed in the district courts of the Third Circuit, and never in this context.  While the decision is binding in New York, Connecticut, and Vermont, it will surely shake things up in our neighboring Third Circuit jurisdictions of New Jersey, Pennsylvania, and Delaware, where each year public school districts spend tens of thousands of dollars performing independent FBAs at parental request, by outside private evaluators, rather than choosing to spend even more defending FBAs conducted by the school district itself. 

Under the Individuals with Disabilities Education Act (“IDEA”), school districts are required to perform a comprehensive initial evaluation of the child in all areas of suspected disability prior to rendering an initial eligibility determination for special education and related services and developing an individualized education program (“IEP”) for the child.  If the child is eligible, the district is also required to conduct comprehensive “triennial” reevaluations every three years.  Pursuant to federal regulations, a parent is entitled to an IEE at public expense “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.”  34 C.F.R. 300.502(b).  In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent, unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees.  N.J.A.C. 6A:14-2.5(c).  Parents are entitled to only one IEE each time the school district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments, so long as only one such request is made in response to the district evaluation or reevaluation.

In Trumbull, the student, D.S., underwent a comprehensive reevaluation in October 2014, making him due for his next triennial reevaluation in October 2017.  Yet, in the spring of each school year, the district and parent voluntarily agreed to conduct an FBA, in order to help them better understand the motivations underlying D.S.’s problem behaviors and assist them in fine-tuning his IEP to reduce or extinguish those behavior in order to ensure they did not interfere with his learning.  In response to the district’s March 2017 FBA, D.S.’s parents requested an IEE, seeking not only a private FBA, but also many other types of private assessments, at public expense, and they sought to withdraw their consent to his October 2017 triennial reevaluation.  The district refused and filed for due process in response to the IEE request. 

The procedural history of the case was nearly as fascinating as the Second Circuit’s substantive holding.  At the initial due process hearing, the hearing officer accepted that an FBA was a type of evaluation that could trigger the right to an IEE at public expense, and the school district did not dispute that position.  Yet, the hearing officer rejected the parents’ IEE request, finding that they could not make an IEE request for comprehensive reevaluations in other areas that exceeded the scope of the FBA conducted by the district.  On appeal, the federal district court found that the school district had waived any argument that an FBA was not an evaluation for purposes of an IEE request, and affirmed the hearing officer’s finding that the parents could not request an IEE at public expense that exceeded the scope of the district’s evaluation.  The district court also found that the IDEA’s two-year statute of limitations on due process complaints barred the parents from basing their request for an IEE upon an alleged disagreement with the October 2014 comprehensive reevaluation. 

On further appeal, the Second Circuit reversed the district court and held that the parents did not have a right to an independent FBA at public expense because an FBA is not an “evaluation” within the meaning of the IDEA for purposes of an IEE request, choosing to take up the issue sua sponte, even though that issue was not addressed at any prior point in the litigation.  The circuit court held:

“D.S.’s parents argue, the hearing officer found without objection, the district court assumed, and the Board concedes that an FBA constitutes an ‘evaluation’ with which a parent may disagree to obtain an IEE at public expense. As a result, the hearing officer and district court both concluded that, with respect to a limited assessment like an FBA, a parent’s right to disagree may not exceed the scope of the contested evaluation. This contention/finding/assumption/concession accepts a false equivalency that if not righted produces a remedy at odds with the purpose and intent of the Act.”

The Second Circuit then explained its reasoning that the IDEA’s plain text sets forth two types of evaluations:  initial evaluations and reevaluations.  “That the statute does not expressly or impliedly mention a third category of evaluations comprised of limited or targeted assessments,” the court reasoned, “suggests that there is none.”  Citing 20 U.S.C. § 1414(b)(2), the court carefully laid out the four critical characteristics that the federal regulations utilize to define an assessment as either an “initial evaluation” or a “reevaluation,” including (1) the use of a variety of assessment tools and strategies, (2) not using any  single measure or assessment as the sole criterion, (3) using technically sound instruments to assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors, and (4) “assessing the child in all areas of suspected disability.”  The court made clear that, unless an evaluation by the school district meets these requirements as an “initial evaluation” or a “reevaluation” (meaning a triennial), it is merely a “limited or targeted assessment” that does not trigger a parent’s right to request an IEE at public expense.  The court plainly stated that, “[a]n FBA, standing alone, is neither,” though its reasoning could just as easily be applied to many other types of assessments of a special education child performed outside the context of a full initial evaluation or triennial reevaluation.

In so holding, the Second Circuit rejected the two policy letters from the U.S. Department of Education that school districts and parents have long relied upon for guidance in this area.  See Letter to Christiansen (Feb. 9, 2007) (opining that an FBA conducted to develop a behavioral intervention plan for a child would trigger a parent’s right to request an IEE at public expense); see also Letter to Scheinz (June 7, 2000) (opining that a parent could obtain an IEE at public expense in response to an FBA conducted outside the context of an initial eval or triennial reeval).  Flatly dismissing the existing policy guidance from U.S. DOE, the court held:  “The Department of Education’s interpretation ignores the plain text of the statute and regulations, and therefore we owe it no deference.”             

In the wake of this decision, observers and practitioners of special education law will surely have interesting days ahead when faced with requests from parents for IEEs at public expense in response to “limited” or “targeted” evaluations conducted by a district in between triennial reevaluations.

On September 23, 2020, the Ninth Circuit Court of Appeals ruled in McIntyre v. Eugene School District that the exhaustion of administrative remedies is not required when the claims do not allege a denial of a free appropriate public education (“FAPE”) as defined by the Individuals with Disabilities Education Act (“IDEA”). The case involved a student with attention deficit disorder who alleged that her school district violated Section 504 of the Rehabilitation Act and the Americans with Disabilities Act when it did not provide her with disability-related testing accommodations and failed to follow an emergency health protocol.

In the complaint, the student did not expressly allege a denial of FAPE. Instead, it alleged that the school district failed to provide her with reasonable accommodations and discriminated against her by failing to provide her with those reasonable accommodations and creating a hostile learning environment. The student was eligible for a Section 504 plan but did not have an individualized education program (“IEP”). The complaint did not seek compensatory education. Instead, it sought declaratory and injunctive relief, economic and noneconomic money damages, and reasonable attorneys’ fees and costs.

The student’s complaint was dismissed by the federal District Court, which relied upon the 2017 United States Supreme Court case Fry v. Napoleon Community Schools. The District Court interpreted the student’s complaint as primarily involving FAPE, and therefore exhaustion of administrative remedies was required. On appeal, the Ninth Circuit disagreed.

Instead, the Ninth Circuit found that the student’s Complaint sought relief for the denial of equal access to her education as opposed to a denial of FAPE. The Ninth Circuit relied upon the fact that the student did not have an IEP and that the testing accommodations and the health protocol in the Section 504 did not constitute special education for which FAPE is required.

On June 12, 2020, the New Jersey Department of Education (“NJDOE”) provided guidance to school districts on the delivery of extended school year (“ESY”) services to eligible students with disabilities during the COVID-19 pandemic. The NJDOE’s guidance was in response to the Governor’s recent Executive Order 149 allowing for in-person ESY programming beginning on or after July 6, 2020. Pursuant to the Individuals with Disabilities Education Act (“IDEA”) and corresponding New Jersey regulations, once a school district determines that a student with disability requires additional educational services during the summer, the school district is required to include an ESY program as part of that student’s individualized education program (“IEP”). ESY programs usually operate in July and August.

According to the NJDOE’s guidance, school districts are not required to transition to in-person ESY, as the discretion is left to each individual school district. In considering whether a school district can or should operate an in-person ESY program, the NJDOE urges school districts to determine whether they can comply with the New Jersey COVID-19 Youth Summer Camp Standards issued by the New Jersey Department of Health (“NJDOH”). In addition, the NJDOE encourages school districts to consider a combination of remote and in-person instruction during ESY. Further, the NJDOE suggests that in-person evaluations can resume during this period.

If a school district decides to provide any kind of in-person instruction during ESY, it must submit an attestation to the NJDOH confirming that it will follow all applicable standards. This attestation must be submitted 24 hours before the anticipated opening date.

The NJDOE also reminds school districts to consider educational equity, including access to technology and the rights of students with disabilities under the IDEA.

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.