New Law Extends Time for Filing Due Process Claims

and Grants Parents IEP Meeting Rights

In order to mitigate the spread of Covid-19, Governor Phil Murphy issued Executive Order No. 104 and closed schools in New Jersey for in-person instruction effective March 18, 2020. Subsequently, the pandemic had a significant impact on students, and many have suffered educational setbacks due to remote instruction. Notably, students with disabilities have been impacted by remote instruction since, in many cases, students could not receive the services required by their individualized education programs (IEPs). Last year, the Legislature enacted a law requiring boards of education to offer additional or compensatory special education and related services, for up to one additional year, to students with disabilities who would otherwise have aged out.[1] The extension of those services was based on a determination made by the student’s IEP team that the student required the additional education and/or related services.

The Legislature has remained concerned about the impact of the pandemic on students with disabilities. On February 28, 2022, the Legislature approved Senate Bill No. 905 which has extended the period of time for filing special education due process petitions. The bill was signed into law by Governor Murphy on March 3, 2022.[2] The new law became effective immediately and applies retroactively to March 18, 2020.[3] 

By way of background, the Individuals with Disabilities in Education Act (IDEA) contains a two-year statute of limitations for the filing of special education claims.[4] This limitations period would have required any due process petitions alleging a deprivation of rights from the start of the pandemic to be filed by March 18, 2022, which was the two-year anniversary of the closing of New Jersey schools. The new law now extends the filing deadline until September 1, 2023, for any due process petitions asserting any special education claims that accrued between March 18, 2020, and September 1, 2021, regardless of the limitation provisions of the IDEA or any state laws or regulations.[5]

Another provision of the new law requires districts to hold IEP team meetings, by no later than December 31, 2022, when requested by a parent to guardian, to discuss the provision of compensatory education and related services for any student with a disability who had an IEP between March 18, 2020 and September 1, 2021.[6] The notice of the IEP team meeting to the parent or guardian must state that the purpose of the meeting is to discuss the need for compensatory education and services for period from March 18, 2020 to September 1, 2021.[7] After the meeting, notice must be provided to the parent or guardian in accordance with N.J.A.C. 6A:14-1.1., et seq., and must include all determinations made with the respect to the need for and the provision of compensatory education and related services, as appropriate.

The district does not have to hold an IEP team meeting by December 31, 2022, if prior to March 3, 2022, the district: (i) has already held an IEP team meeting and discussed the need for compensatory education and services for a student with a disability with an IEP during the time between March 18, 2020 and September 1, 2021; (ii) the IEP team’s determinations have been documented; and (iii) the parent or guardian and the district have not agreed to another IEP team meeting.[8]  However, a parent or guardian can still file a due process petition up through September 1, 2023 to challenge any determination made by the IEP team.[9]

The new law prohibits a parent or guardian from relitigating claims for compensatory education or special education services that were previously resolved through mediation or through a settlement.[10]  More specifically, if a parent or guardian filed for mediation or for due process regarding a student with a disability, who had an IEP between March 18, 2020 and September 1, 2021, and the matter was resolved through mediation or a settlement agreement, then the parent or guardian is barred from filing the same claims for the same time period.[11] The new law also does not apply to students with a disability who had an IEP in place between March 18, 2020 and September 1, 2022, but who have aged out. Those students who are aged 21 are subject to the provisions of N.J.S.A. 18A:46-6.3, which has been amended.[12]

In light of the new law, school administrators are encouraged to confer with their districts’ special education directors and advise them of the new law and its implications. Students with a disability who had an IEP in place during the period between March 18, 2020, and September 1, 2021, should be identified. IEP teams should be prepared to meet before December 31, 2022, following any request by a parent or guardian to discuss the provision of compensatory education and services for any such students, to the extent the students have not yet reached age 21, and/or to the extent an IEP team meeting was not already held prior to March 2022. Questions regarding the application of the law should be directed to the board attorney or the district’ special education counsel.

[1] See Pub. L. 2021, ch. 109, codified at N.J.S.A. 18A:46-6.3.

[2] Pub. L. 2022, ch. 2.

[3] Pub. L. 2022, ch. 2, §2.

[4] See 20 U.S.C.A. §1415(f)(3)(C); N.J.A.C. 6A:14-2.7(a)(1).

[5] Id. at §1(a).

[6] Id. at §1(b).

[7] Id.

[8] See id. at §1(c).

[9] Id.

[10] See id. at §1(d).

[11] Id.

[12] See id. at §1(e).