A5720

An Act concerning enforcement of special education law and supplementing chapter 46 of Title 18A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. The Commissioner of Education shall appoint personnel from the Office of Special Education, or in the case of a complaint against the Office of Special Education, an independent investigator, to monitor the implementation of the provisions of an order of compliance or corrective action plan issued to a school district or other public or private education agency responsible for the development and implementation of a student’s individualized education program or for provision of special education and related services to New Jersey students as a result of a State complaint investigation conducted in accordance with State and federal special education laws.

b. At the conclusion of each applicable time limit specified for a school district or other public or private education agency to have implemented the provisions of an order of compliance or corrective action plan as well as at the end of one year from the date of the report finding noncompliance, the Office of Special Education or independent investigator shall forward to the Commissioner of Education and the complainant a written report indicating whether the issues have been resolved, and if not, the extent to which action has been taken to achieve compliance with the requirements of State and federal special education laws.

c. In the event the written report from the Office of Special Education or independent investigator shows that a school district or other public or private agency has not complied with orders issued by the Office of Special Education or independent investigator, the Commissioner of Education shall give written notice to the school district or other public or private agency and to the complainant of the further enforcement action to be taken.

d. When taking enforcement action, the commissioner shall consider:

(1) severity, length, and the repetitive nature of the same or other noncompliance;

(2) whether the actions of a student’s parent or guardian prevented full implementation of corrective activities;

(3) the impact on students; and

(4) whether the nature of the noncompliance is de minimis.

Good faith efforts made to correct the problem shall not be a defense to enforcement but may be relevant to the enforcement action selected pursuant to subsection e. of this section.

e. Enforcement action shall include, but not be limited to:

(1) corrective action plan development, implementation, and monitoring;

(2) voluntary and mandatory technical assistance as determined by the commissioner;

(3) mandatory, targeted professional development as determined by the commissioner;

(4) targeting or redirecting, as permissible, the use of federal special education funds in the areas of concern, including designating the use of such funds for specific activities;

(5) ordering the cessation of operations of discrete programs operated by a school district or other public or private education agency for the benefit of students with disabilities;

(6) withholding payments of State aid to a school district or other public or private education agency, or the transfer of State aid thereto, until compliance is met;

(7) order the repayment of misspent or misapplied State or federal funds;

(8) in the case of an approved private school for students with disabilities, order all school districts sending students to the approved private school to relocate the students for whom each district is responsible to other programs or facilities that are in compliance with State and federal education laws;

(9) imposing other sanctions, as appropriate; and

(10) referral to the New Jersey Attorney General for further enforcement of sanctions.

f. A review of programs to ensure compliance, which may include a desk audit, scheduled on-site reviews, and unannounced on-site reviews, shall take place on a schedule to be determined by the commissioner.

2. This act shall take effect immediately.

STATEMENT

This bill requires additional monitoring and enforcement of orders of compliance and corrective action plans issued during special education disputes.

This bill directs the Commissioner of Education to appoint personnel from the Office of Special Education, or in the case of a complaint against the Office of Special Education, an independent investigator, to monitor the execution of the orders of compliance or corrective action plan issued to a school district or other public or private education agency as a result of a State complaint investigation conducted in accordance with State and federal special education laws.

Under the bill, at the conclusion of the time limit specified for the school district or other public or private education agency to have completed the corrective action specified in the orders of compliance or corrective action plan as well as at the end of one year from the date of the report finding noncompliance, the Office of Special Education or independent investigator is required to forward to the Commissioner of Education and the complainant a written report indicating whether the issues have been resolved, and if not, the extent to which corrective action has been taken to achieve compliance with the requirements of State and federal special education laws. In the event the written report shows that a school district or other public or private agency has not complied with orders issued by the department, the Commissioner of Education or independent investigator is directed to give the written notice of the further enforcement action to be taken.

Under the bill, when taking enforcement action, the commissioner is required to consider:

(1) severity, length and the repetitive nature of the same or other noncompliance;

(2) whether the actions of a student’s parent or guardian prevented full implementation of corrective activities;

(3) the impact on students; and

(4) whether the nature of the noncompliance is de minimis.

The bill details numerous enforcement actions that may be taken. The bill provides that a review of programs to ensure compliance will take place on a schedule to be determined by the commissioner.