After years of litigation, J.A. v. New Jersey Department of Education, a lawsuit in New Jersey federal court, reached a settlement. The resolution has immediate and lasting impacts on all special education matters pending before the Office of Administrative Law (“OAL”), and it is vital for school districts to understand its implications and how to proceed in special education appeals.
The Plaintiffs are parents who sued the New Jersey Department of Education (“NJDOE”), the Commissioner of the NJDOE, and the New Jersey Office of Administrative Law (“OAL”), alleging “systemic flaws in NJDOE’s system for resolving special education cases” due to violations of the Individuals with Disabilities Education Act, 20 U.S.C. §1400 et seq. (“IDEA”). The parties agreed it was in their best interest to resolve the issues raised in the lawsuit by settlement rather than continued litigation.
The following are the most important takeaways.
1. Strict Compliance With the “Stay Put” Rule
Administrative Law Judges (“ALJs”) must strictly maintain “the then-current educational placement of the child under 20 U.S.C. § 1415(j) of the IDEA and as an “automatic preliminary injunction under M.R. v. Ridley School Dist., 744 F.3d 112, 117 (3d. Cir. 2014). ALJs shall cease applying the standard for emergency relief in Crowe v. DeGioia, 90 N.J. 126 (1982). This means in special education appeals, an ALJ should no longer analyze whether a child should stay put under the four-factor test of Crowe – it is an automatic injunction that occurs by virtue of the appeal. Schools must be prepared to maintain the child’s current education placement while an appeal is pending, or risk a violation of the Settlement.
2. ALJs Must Adhere to the Rules of the New Jersey Administrative Code and IDEA
While none of these rules changed in the Settlement, it reminds practitioners to adhere to the rules and regulations governing special education appeals. Important reminders include:
a. It is best practice for the assigned ALJ to conduct a prehearing conference with the parties and/or their counsel within 5 days of transmittal of a case from the Office of Special Education (“OSE”) to the OAL in accordance with N.J.A.C. § 1:6A-13.1.
b. Parents have the right to examine all records relating to their child with a disability, pursuant to 20 U.S.C. § 1415(b)(1), 34 C.F.R. §§300.501 and 300.613; and N.J.A.C. § 6A:14-2.9(b). The State must enforce a parent’s right to inspect and review their child’s education records in accordance with the above-referenced regulations.
c. Upon application by a party, an ALJ shall exclude any evidence at a hearing that was not disclosed to the party at least five days prior to the hearing, unless the ALJK determines the evidence could not have reasonably been disclosed within that time, pursuant to N.J.A.C. §1:6A-10.1(c).
d. “If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation . . . [m]ust be considered by the public agency . . . and [m]ay be presented by any party as evidence at a hearing on a due process complaint . . .” 34 C.F.R. § 300.502(c).
3. Qualifications of ALJs Handling Special Education Disputes and Training Requirements
ALJs must meet the requirements of a hearing officer under the IDEA, 20 U.S.C. § 1415(f)(3)(A). This means an ALJ must not be: (1) an employee of the state educational agency or the local educational agency involved in the education or care of the child; or (2) a person having a personal or professional interest that conflicts with the person’s objectivity in the hearing. Next, ALJs must possess knowledge of and the ability to (1) understand the IDEA, and the legal interpretations of IDEA by federal and state courts; (2) conduct hearings in accordance with the appropriate, standard legal practice; and (3) render and write decisions in accordance with the appropriate, standard legal practice.
Further, ALJs cannot hear special education due process hearings unless they have completed several required trainings. This will be done through a series of academic training modules, where ALJs are required to review written modules and recorded presentations about special education law. Mediators must complete this training as well.
This requirement will ensure that ALJs and mediators are fully apprised of the governing law in these cases, which will undoubtedly help move cases along and ensure they are resolved in an expeditious manner.
4. Compliance with the 45-day Rule
The OAL will collaborate and corporate with the NJDOE and the Compliance Monitor from a settlement another lawsuit, C.P. v. New Jersey Dept. of Educ., to ensure that special education appeals are decided in accordance with the 45-day rule. As a reminder, that consent order defined “45 days or 45-day timeline” as 45 calendar days from Day 1. Day 1 is the first day following the end of the 30-day resolution period.
Subject to any adjournments pursuant to N.J.A.C. 1:6A-9.2, a written decision shall be issued by the judge and mailed by the Office of Administrative Law no later than 45 days after the end of the 30-day resolution period.
This makes clear the timeline of a special education due process petition and ensures school districts are aware of the rate of case progression. The parties first have 30 days after the appeal is filed to settle. If they do not, the clock begins on the first day after the 30-day resolution period for the ALJ to hold a hearing and issue a decision. School districts should understand these timelines, ensure they are prepared for hearings and, if needed, request adjournments for specific amounts of time.
5. Prevailing Party Attorney’s Fees and Costs
ALJs may advise the parties that, while they do not have jurisdiction over prevailing party determinations or reimbursement of attorney’s fees and costs, they may discuss these issues during settlement conferences and mediation sessions. They may offer options as to how to incorporate them into the settlement of the matter or permit them to pursue a fee petition in state or federal court.
School districts should keep in mind the issue of attorney’s fees while trying to settle special education appeals – while the OAL does not have jurisdiction over the issue, discussing fees as an aspect of settlement ensures finality of the dispute without the worry of a subsequent legal action to collect fees.
6. The Appointment of a Compliance Monitor
This is the most important part of the Settlement – the Court will appoint a Compliance Monitor (“Monitor”), to serve for 12 months, to support the State Defendants to ensure they comply with the Settlement. The Monitor will collect forms from anyone who submits a complaint believing there has been a violation of the Settlement.
The Monitor will track data related to every allegation of violation received. If the Monitor receives five or more allegations in the same category other than due process cases within a 60-day period, the Monitor will refer the allegations to the OSE. The OSE will determine the validity of the violations and if corrective action is needed. The Monitor will compile a report to provide to the signatories of the Settlement every 90 days.
This is important for school districts because it shows there is an additional level of oversight to ensure the Settlement, IDEA, and state rules and regulations are being complied with.
What Does This Mean for School Districts?
While the Settlement does not change any regulations, it ensures that the OAL is complying with the IDEA and relevant New Jersey regulations with respect to special education appeals. It is important for districts to retain counsel experienced in special education appeals, as compliance with the relevant rules and regulations will be followed more closely. If your District has any questions regarding special education appeals at the OAL, please contact our office.
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