By Aileen O’Driscoll

As the result of the statewide school building closures in the wake of the COVID-19 pandemic, the teaching environment has changed dramatically for every public school student, including students with special educational needs. Since early April, there have been several major developments that are intended to ensure the continuation of services for students with special needs.

The New Jersey State Board of Education recognized remote teaching practices conflict with regulations that address services for students with special needs. At its April 1 meeting, which was itself held virtually, the SBOE passed an emergency measure that temporarily allows for special education and related services to be delivered remotely. The services provided should be appropriate and consistent with the student’s individualized education program (IEP) to the greatest extent possible.

Telehealth, telemedicine and the law

The SBOE emergency regulations apply to services provided in schools. In 2017, however, the New Jersey Legislature passed S-291—a law that permits those professionals licensed under Title 45 to practice telemedicine. S-291 applies to psychologists, clinical social workers, professional counselors, speech pathologists, and nurses, but does not address the delivery of these professionals’ services by their school-based counterparts. Further, this law does not apply to physical and occupational therapists.

Based upon S-291, however, some districts are requiring counselors and speech therapists to provide services virtually. School psychologists, social workers, and speech therapists do not have to be licensed under Title 45 to deliver their services in schools, provided they have the proper NJDOE certifications. The NJDOE will allow these individuals to provide teleservices, rather than in-person services, in the current exceptional circumstances.

An initial review of S-291 appears to allow these practices without endangering licensure status. Members, including physical and occupational therapists, should reach out to their professional associations for guidance.

Teleservices in the school context

While S-291 does not speak specifically to the school context a proposed new state law would.

A-3904, would add to school law explicit authorization to deliver speech language services and counseling services “to special education students using electronic communication or a virtual or online platform, as appropriate” during states of emergency such as the current one. A-3904 has passed in both houses and, as of press time, is awaiting the governor’s signature.

For districts that are requiring teleservices, local associations and members should inquire into the district’s plan for providing those services. Critically, privacy and patient confidentiality laws and regulations still apply to teleservices, both state and federal, including the Family Educational Rights and Privacy Act (FERPA) and Health Insurance Portability and Accountability Act (HIPAA).

Local associations should push districts to meet their responsibilities to ensure the platforms and methods for delivering teleservices comply with all privacy laws. Locals should also negotiate any impact on caseload and demand the appropriate materials and training for affected staff.

As of press time, the NJDOE has not issued additional guidance on these issues, though it is expected. As a general note on special education services, the NJDOE has advised that when school is back in session, child study teams will have to evaluate the services provided during school closures and make provisions for any necessary compensatory services.

Aileen O’Driscoll is the managing attorney in NJEA’s Legal Services Division. She can be reached at aodriscoll@njea.org.

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