On April 30, 2020, the New Jersey Department of Education (NJDOE) issued a memo to New Jersey Directors of Special Education responding to instances in which school districts sought to require parents or guardians to waive certain legal rights or give written consent for services as a condition for receipt of special education or related services during COVID-19 school closures. The memo clarifies that these practices violate the Individuals with Disabilities Education Act (IDEA) and NJDOE regulations, stating:
“Consistent with the guidance previously issued by the NJDOE as well as guidance issued by the U.S. Department of Education during the COVID-19 public health emergency, school districts must implement a student’s Individualized Education Program (IEP) to the greatest extent possible. Requiring the execution of a waiver or release of present or future claims as a condition to implement a student’s IEP is prohibited.”
and…
“Neither the IDEA nor the state’s special education regulations require or allow for the waiver of present or future claims, including claims to compensatory services, in order for students with disabilities to receive the services to which they are entitled as determined by the student’s IEP. These entitlements include related services through telehealth, telemedicine, electronic communications, remote, virtual, or other online platforms. Additionally, a key right guaranteed by both the IDEA and the state’s regulations is the right to disagree with a school district’s determination or action concerning the educational program of a student with a disability utilizing various dispute resolution options, including but not limited to facilitated IEP meetings, local resolution sessions, mediation conferences, due process hearings, and complaint investigations.”
and…
“School districts should begin now to consider how the extended school closures may affect students’ progress toward IEP goals to determine whether compensatory services are needed.”
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