Education Law Center has filed a lawsuit challenging the New Jersey Department of Education’s (NJDOE) failure to regulate school district use of the internet to deliver essential services to students with disabilities.
In September 2017, NJDOE notified school districts that they could provide speech and occupational therapy services, as well as counseling and home instruction, via the internet, through contracts typically entered with private providers. These services, delivered to students remotely by computer, are generally known as “telepractice” or “teletherapy.”
In allowing the use of telepractice, the NJDOE did not establish any administrative rules governing its use. At least one large New Jersey district, the Paterson Public Schools, has entered into a contract to provide a significant level of services using this computer-based method as an alternative to direct services by qualified staff in schools and classrooms.
ELC has previously raised concerns with the State about the unregulated use of teletherapy in schools. These concerns, along with a request to adopt rules governing the practice, were detailed in a December 2017 letter to NJDOE and an April 2018 letter to the New Jersey Attorney General. Despite these repeated requests, NJDOE has failed to initiate rulemaking as required by law.
The lawsuit, filed in New Jersey Superior Court, Appellate Division, challenges NJDOE’s violation of the State Administrative Procedure Act in its failure to properly regulate the use of teletherapy. New Jersey agencies, including NJDOE, are prohibited from authorizing new practices and policies unless the agency enacts formal regulations after proper notice and the opportunity for public comment. This process is essential to government transparency and for eliciting feedback from stakeholders to assist the agency in designing new regulations.
“Since New Jersey has historically required all related services to be provided in-person, allowing students to receive services through computer screens from providers in far-off states represents a significant policy change,” said ELC Senior Attorney Elizabeth Athos. “While telepractice may be useful if no therapist is available in a particular location or for a particular service, the method of providing services is not effective for students of all ages and disabilities, and must be carefully vetted. Reasonable rules are needed to ensure the effective and appropriate use of telepractice.”
ELC also recently filed a complaint with NJDOE’s Office of Special Education Policy and Dispute Resolution, requesting an investigation of speech-language services provided by the Paterson Public Schools in the 2017-18 school year. Although NJDOE declined to investigate the use of telepractice, it has agreed to investigate whether the district properly implemented speech-language services required by the Individualized Education Programs, or IEPs, of students with disabilities. In response to earlier requests from ELC, NJDOE investigated Paterson’s provision of these services during 2016-17, and found systemic violations of special education law.
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