Current through Register Vol. 56, No. 18, September 16, 2024
(a) A due process
hearing is an administrative hearing conducted by an administrative law judge.
For students age three through 21, a due process hearing may be requested when
there is a disagreement regarding identification, evaluation, reevaluation,
classification, educational placement, the provision of a free, appropriate
public education, or disciplinary action. For students above the age of 21, a
due process hearing may be requested while the student is receiving
compensatory educational or related services.
1. A request for a due process hearing shall
be filed within two years of the date the party knew, or should have known,
about the alleged action that forms the basis for the due process petition. The
two-year period for filing for a due process hearing may be extended by an
administrative law judge if:
i. A district
board of education specifically misrepresented to the parent that the subject
matter of the dispute was resolved to the parent's satisfaction; or
ii. The district board of education withheld
information that was required by law to be provided to the parent.
(b) In
addition to the issues specified in (a) above, the district board of education
or public agency responsible for the development of the student's IEP may
request a due process hearing when the district board of education is unable to
obtain required consent to conduct an initial evaluation or a revaluation, or
to release student records. The district board of education shall request a due
process hearing when the district board of education denies a written parental
request for an independent evaluation in accordance with
N.J.A.C.
6A:14-2.5(c).
(c) A request for a due process hearing shall
be made in writing to the Director of the Office. The party initiating the due
process hearing shall send a copy of the request to the other party. The
written request shall note that a copy has been sent to the other party. The
written request shall include the student's name, student's address, the
student's date of birth, and the name of the school the student is attending.
The written request also shall state the specific issues in dispute, relevant
facts, and the relief sought and, in the case of a homeless child, available
contact information for the child and the name of the school the child is
attending.
(d) Except when a
response is required to be filed by a district board of education pursuant to
(e) below, the party against whom a request for a due process hearing is
directed shall provide, within 10 days of the filing of a request for a due
process hearing, a written response specifically addressing the issue(s) raised
in the request for a due process hearing to the party that requested the due
process hearing.
(e) When a parent
requests a due process hearing, or an expedited due process hearing (for
disciplinary issues), and the district board of education has not sent a prior
written notice to the parent regarding the subject matter contained in the
parent's due process request, the district board of education shall send a
written response to the parent within 10 days of receiving the petition. The
written response shall include:
1. An
explanation of why the district board of education proposed or refused to take
the action raised in the request for a due process hearing;
2. A description of other options that the
IEP team considered and the reasons those options were rejected;
3. A description of each evaluation
procedure, assessment, record, or report the district board of education used
as the basis for the proposed or refused action; and
4. A description of the factors that are
relevant to the district board of education's proposed or refused action.
(f) A request for a due
process hearing, or expedited due process hearing (for disciplinary issues),
serves as notice to the respondent of the issues in the due process complaint.
The respondent may assert that the notice does not meet the requirements of
20 U.S.C. §
1415 and, therefore, the notice is not
sufficient. The notice for a hearing will be considered sufficient unless the
respondent notifies the Office and the complaining party (petitioner), in
writing, within 15 days of receipt of the request for a due process hearing.
1. The sufficiency challenge will be
forwarded to the Office of Administrative Law (OAL) within five days of receipt
of the written objection. An administrative law judge will determine whether
the notice meets the requirements of
20 U.S.C. §
1415 and will notify the parties, in writing,
of the determination.
2. If the
notice is determined sufficient, the timelines for resolution activities and
for conducting a due process hearing will continue. If the notice is deemed
insufficient, the administrative law judge may dismiss the case and the
petitioner may re-file with the Office, or the administrative law judge may
grant permission to amend the request.
i. If
the case is dismissed and the petitioner files a new request for a due process
hearing, all applicable timeframes and procedures set forth in these rules
shall commence anew.
ii. If the
administrative law judge allows the petitioner to amend the request for a due
process hearing as part of a sufficiency challenge, the applicable timeframes
and procedures shall commence to run from the time of the administrative law
judge's determination.
(g) When the Office receives a request for a
due process hearing, the matter shall be processed and, as appropriate,
mediation and a due process hearing in accordance with this chapter will be
made available to the parties.
(h)
When a parent requests a due process hearing or expedited due process hearing,
the district board of education shall have an opportunity through a resolution
meeting to resolve the matter before proceeding to a due process hearing. The
district board of education shall conduct a resolution meeting with the parents
and the relevant member(s) of the IEP team who have specific knowledge of the
facts identified in the request.
1. The
resolution meeting shall include a representative of the district board of
education who has authority to make decisions on behalf of the district board
of education.
i. The district board of
education shall not include its attorney unless the parent is accompanied by an
attorney.
ii. An advocate shall not
be considered an attorney for purposes of determining whether a district board
of education shall be entitled to bring its attorney to a resolution
meeting.
2. For a due
process hearing, the resolution meeting shall be held within 15 days of
receiving the parents' request. For an expedited due process hearing, the
resolution meeting shall be held within seven days of receiving the
request.
3. The resolution meeting
shall not be audio or video recorded by either party unless both the district
board of education and the parent agree to record the resolution
meeting.
4. If a due process
hearing request is not resolved to the satisfaction of the parents within 30
days of the receipt of the petition, the Office shall transmit the case to the
Office of Administrative Law for a due process hearing.
5. If an expedited due process hearing
request is not resolved to the satisfaction of the parents within 15 days of
receipt of the request, the Office shall transmit the case to the Office of
Administrative Law for an expedited due process hearing.
6. If an agreement is reached at the
resolution meeting, the terms of the agreement shall be incorporated into a
written document and signed by the parties.
i. Either party may void the agreement, in
writing, within three business days of signing the agreement.
ii. If the agreement is not voided within the
three business days, it is legally binding.
iii. If either party fails to implement the
written agreement, it is enforceable in any State court of competent
jurisdiction or in the United States District court.
iv. If a dispute arises over the voiding of a
resolution meeting agreement, the matter shall be transmitted to the Office of
Administrative Law for a due process hearing.
7. If the requirements of this subsection
with respect to scheduling and conducting a resolution meeting are not adhered
to, issues concerning adherence to such procedures shall be raised in a due
process hearing, and shall not be raised in a request for a complaint
investigation pursuant to
6A:14-9.2.
8. In place of a resolution meeting, the
parties may agree to participate in mediation conducted by a mediator from the
Office of Administrative Law in accordance with
N.J.A.C.
6A:14-2.6.
i. Parents shall indicate on their request
for a due process hearing whether mediation is also requested.
ii. If the district board of education agrees
to mediation in lieu of a resolution meeting, a representative of the district
board of education shall contact the Office to facilitate the scheduling of the
mediation conference.
iii. If the
parties fail to participate in mediation within 30 days of the date the request
for a due process hearing is submitted, the matter shall be transmitted to the
Office of Administrative Law for a due process hearing with a notation that the
parties declined a resolution meeting and requested mediation, but that the
mediation conference failed to occur.
9. The parties may agree, in writing, to
waive the resolution meeting and proceed directly to a due process hearing.
i. Parents may indicate on the request for a
due process hearing that they desire to waive the resolution meeting.
ii. If the parent and a representative of the
district board of education with decision-making authority agree in writing to
waive the resolution meeting, the parties shall notify the Office that they
have agreed to waive the resolution meeting.
iii. Upon receipt of a signed waiver, the
matter will be transmitted to the Office of Administrative Law for a due
process hearing.
10. The
parties shall notify the Office, in writing, of the result of the resolution
meeting. If the matter has not been resolved or withdrawn, it shall be
transmitted to the Office of Administrative Law after 30 days from the date the
request was received.
11. When a
district board of education files a request for a due process hearing, no
resolution meeting shall be held. The matter shall be mediated if the parties
agree and, if necessary, transmitted to the Office of Administrative Law for a
due process hearing.
(i)
After a petition requesting a due process hearing is submitted to the Office,
the petition may be amended only with the consent of the other party, or if an
administrative law judge allows the party to amend the petition.
1. If a petition is amended with the consent
of a district board of education, the district board of education shall be
afforded the opportunity to hold a resolution meeting in accordance with (h)
above to resolve the issues raised in the amended petition. The timeframes for
holding and completing the resolution meeting shall begin on the date the
amended petition is filed with the Office.
2. If a petition is amended by order of an
administrative law judge, the order shall be issued no later than five days
prior to the date the matter is heard, and no resolution meeting is required to
address the issues raised in the amended petition.
(j) A final decision shall be rendered by the
administrative law judge not later than 45 calendar days after the conclusion
of the resolution period described in (h)2, 4, and 5 above unless specific
adjournments are granted by the administrative law judge in response to
requests by either party to the dispute.
1.
The 15- or 30-day resolution period set forth in (h)2, 4, and 5 above shall end
either at the expiration of the applicable 15- or 30-day time period, or when
both parties notify the Office, in writing, that they have waived the
resolution meeting and intend to proceed directly to a due process
hearing.
(k) The
decision made by an administrative law judge in a due process hearing shall be
made on substantive grounds based on a determination of whether the child
received a free, appropriate public education (FAPE). In matters alleging a
procedural violation, an administrative law judge may decide that a child did
not receive a FAPE only if the procedural inadequacies:
1. Impeded the child's right to a
FAPE;
2. Significantly impeded the
parents' opportunity to participate in the decision-making process regarding
the provision of FAPE to the child; or
3. Caused a deprivation of educational
benefits.
(l) The
decision of the administrative law judge is final, binding on both parties, and
to be implemented without undue delay unless stayed in accordance with N.J.A.C.
1:6A.
1. The decision in a due process
hearing shall be provided in an electronic form if the parent requests that it
be issued in an electronic form.
(m) If the parent disagrees with the
determination that the student's behavior was not a manifestation of the
student's disability or with any decision regarding placement under
20 U.S.C. §
1415(k) and its implementing
regulations at
34 CFR
§§
300.1 et seq., the parent may
request an expedited hearing.
(n)
To remove a student with a disability when district board of education
personnel maintain that it is dangerous for the student to be in the current
placement and the parent and district board of education cannot agree to an
appropriate placement, the district board of education shall request an
expedited hearing. The administrative law judge may order a change in the
placement of the student with a disability to an appropriate interim
alternative placement for not more than 45 calendar days according to
20 U.S.C. §
1415(k) and its implementing
regulations at 34 CFR Part 300;
1. The
procedure in
20 U.S.C. §
1415(k)(3) may be repeated
as necessary.
(o) An
expedited hearing shall be requested according to the following:
1. The request for a due process hearing
shall specify that an expedited hearing is requested due to disciplinary
action;
2. When a request for an
expedited hearing is received, the Office shall acknowledge receipt of the
request, shall provide information to the parent regarding free and low-cost
legal services, shall provide mediation if requested by both parties in lieu of
a resolution meeting, and shall transmit the case to the Office of
Administrative Law according to the following:
i. A representative from the Office shall
contact a representative of the Office of Administrative Law who will provide a
hearing date;
ii. The expedited
hearing shall be conducted and completed within 20 school days of receipt of
the request by the Office;
iii. The
resolution meeting or, if requested by both parties, mediation shall be
scheduled within seven days and completed within 15 days of receipt of the
request by the Office;
iv. If the
mediation results in agreement, the conclusions of the parties shall be
incorporated into a written agreement prepared by the mediator at the mediation
conference and signed by each party. The matter shall be considered settled.
The agreement shall be binding according to
6A:14-2.6(d)10;
3. Upon receiving the
acknowledgment of the request from the Office, the parties shall complete the
exchange of relevant records and information at least two business days before
the expedited hearing; and
4. The
expedited hearing shall result in a written decision being provided to the
parties within 10 school days of the completion of the expedited due process
hearing without exceptions or extensions.
(p) In reviewing a decision with respect to a
manifestation determination, the administrative law judge shall determine
whether the district board of education has demonstrated that the child's
behavior was not a manifestation of the student's disability consistent with
the requirements of
20 U.S.C. §
1415(k) and its implementing
regulations at
34 CFR
§§
300.1 et seq.
(q) In reviewing a decision under
20 U.S.C. §
1415(k) and its implementing
regulations at
34 CFR
§§
300.1 et seq. to place the
student in an interim alternative educational setting, the administrative law
judge shall apply the standards in
20 U.S.C. §
1415(k) and its implementing
regulations at
34 CFR
§§
300.1 et seq.
(r) Either party may apply, in writing, for a
temporary order of emergent relief as a part of a request for a due process
hearing or an expedited hearing for disciplinary action, or at any time after a
due process or expedited hearing is requested pending a settlement or decision
on the matter. The request shall be supported by an affidavit or notarized
statement specifying the basis for the request for emergency relief. The
applicant shall provide a copy of the request to the other party. The request
for emergent relief shall note that a copy was sent to the other party.
1. Emergent relief shall be requested only
for the following issues:
i. Issues involving
a break in the delivery of services;
ii. Issues involving disciplinary action,
including manifestation determinations and determinations of interim alternate
educational settings;
iii. Issues
concerning placement pending the outcome of due process proceedings;
and
iv. Issues involving graduation
or participation in graduation ceremonies.
(s) Prior to transmittal of a request for a
due process hearing or an expedited hearing to the Office of Administrative
Law, an application for emergent relief shall be made to the Director of the
Office. After transmittal of a request for a due process hearing or an
expedited hearing, any application for emergent relief shall be made directly
to the Office of Administrative Law.
1.
Emergent relief may be requested according to
1:6A-12.1.
Emergent relief may be granted if the administrative law judge determines from
the proofs that:
i. The petitioner will
suffer irreparable harm if the requested relief is not granted;
ii. The legal right underlying the
petitioner's claim is settled;
iii.
The petitioner has a likelihood of prevailing on the merits of the underlying
claim; and
iv. When the equities
and interests of the parties are balanced, the petitioner will suffer greater
harm than the respondent will suffer if the requested relief is not granted.
(t) If either
party fails to comply with any provision of a final decision in a due process
hearing, either party may seek enforcement of the decision in a court of
appropriate jurisdiction. If the district board of education responsible for
implementing the IEP fails to implement a hearing decision of the Office of
Administrative Law with respect to the student's program or services, a request
for enforcement may be made by the parent or the parent's attorney on behalf of
the student. The request shall be made in writing to the Director of the
Office, Department of Education no later than the 90th calendar day from the
date that the action directed in the hearing decision that is the subject of
the enforcement request was required to have occurred. The request shall
include a copy of the decision issued by the Office of Administrative Law. If
there are multiple requirements or directives in the hearing decision, the
90-day time frame to seek enforcement shall be measured separately for each
requirement or directive, based on the date by which each is required in the
hearing decision to occur. Upon receipt of this request, the district board of
education shall have an opportunity to respond to the request for enforcement
and, if appropriate, seek to resolve the request with the parent. The Office
shall determine the implementation of the decision. If it is determined that
the district board of education has failed to implement the decision or part of
the decision, the Office shall order the district board of education to
implement the decision or part of the decision, as appropriate. If any part of
the decision is modified by subsequent agreement of the parties, enforcement
may not be sought with respect to that part of the decision.
(u) Pending the outcome of a due process
hearing, including an expedited due process hearing, or any administrative or
judicial proceeding, no change shall be made to the student's classification,
program, or placement unless both parties agree, or emergency relief as part of
a request for a due process hearing is granted by the Office of Administrative
Law according to (m) above or as provided at
20 U.S.C. §
1415(k)4. (See N.J.A.C.
6A:14 Appendix A.)
1. If the decision of the
administrative law judge agrees with the student's parents that a change of
placement is appropriate, the placement shall be treated as an agreement
between the district board of education and the parents for the remainder of
any court proceedings.
(v) Any party may appeal the decision of an
administrative law judge in a due process hearing.
1. Any appeal of a final decision of an
administrative law judge in a due process hearing shall be filed within 90 days
of the date of issuance of the final decision. Interim decisions of an
administrative law judge in a due process hearing, including determinations on
requests for emergency relief, or determinations with respect to procedural
issues, including discovery or scheduling, shall not be subject to the 90-day
limitation period for filing appeals and, instead, shall be subject to
applicable requirements pertaining to filing interlocutory appeals to courts of
appropriate jurisdiction.
(w) Requests for a due process hearing with
respect to issues concerning Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. §
794a, shall be processed in accordance with
this section, except as follows:
1. There
shall be no resolution period or opportunity for a resolution meeting pursuant
to (h) above with respect to requests for a due process hearing and issues
concerning Section 504 of the Rehabilitation Act of 1973, regardless of whether
the request for a due process hearing is filed by a parent or a district board
of education. However, the parties may agree to participate in a mediation
conference and, if so, mediation shall be scheduled in accordance with
6A:14-2.6;
and
2. The provisions of (d), (e),
and (f) above are not applicable with respect to requests for a due process
hearing filed concerning issues involving Section 504 of the Rehabilitation Act
of 1973.
