By John Worthington, Esq.
School districts in New Jersey should be aware of a recent settlement agreement involving state special education complaint investigations, and its potential for significant impacts in terms of staff time and school district expenditures. Resolution of disputes over identification, evaluation, placement, and provision of a free, appropriate public education, or FAPE, to students with disabilities has entered a new era with significant implications for how school districts’ individualized education program (IEP) team decisions are reviewed, and the number of such determinations that will be subject to review. The New Jersey Department of Education recently agreed to a revision of its special education complaint investigation process and procedures as part of a settlement with the Education Law Center. The settlement agreement provides for changes in how complaints are investigated, and most importantly, in what the NJDOE, Office of Special Education (OSE) will review in such investigations. The revised procedures are described in the new parental rights in special education booklet located at https://www.nj.gov/education/specialed/parents/ParentalRightsinSpecialEducation2023.pdf
Pursuant to the terms of the settlement agreement, the OSE will now investigate school district determinations with respect to evaluation, placement, and provision of a FAPE to students with disabilities. This is a significant change to past practice. In essence, the special education complaint investigation process now provides an opportunity for a low or no cost review of IEP team determinations that can be used in lieu of, or in addition to, special education due process hearings. This will likely result in a significant increase in the number of requests for complaint investigation against school districts, and a concomitant increase in costs for districts because of the time needed to defend these requests for complaint investigation, and to implement any adverse determinations resulting from the complaint investigation process.
Potential Impact on Future Litigation
Because the settlement agreement was only recently executed, its actual impacts are speculative at this time, although the LEGALONE office considers it highly likely that the number of requests for complaint investigation will increase going forward; possibly significantly. This is because the agreement’s requirement to investigate placement and what constitutes a FAPE for individual students with disabilities presents potential benefits for parents, advocates, and attorneys, both for strategic and practical uses.
The availability for a procedural and substantive review of the process and data utilized for determining placement and the services required to provide a student with disabilities a FAPE offers parents a no cost means for an independent review of IEP team decisions, and for altering such decisions when appropriate. This is, in effect, an informal due process hearing consisting of interviews and document/data review to assess determinations of the appropriate program and services for a student with disabilities, and to alter such determinations when determined appropriate by the OSE. The agreement also makes it clear that such determinations are subject to enforcement by OSE to ensure that they are implemented by school districts, just as decisions in due process hearings are. Essentially, the process affords parents, advocates, and attorneys a means for a low-cost review and, if appropriate, alteration of IEP team decisions as a first step in an appeal process and, if successful, eliminates the need for costly litigation. It also provides a means to acquire data and information, as well as the school district’s arguments as to why it has offered the student a FAPE, prior to filing for a due process hearing. And, because state complaints must be resolved in 60 days, there is plenty of time to file a request for a due process hearing after resolution of a complaint.
While decisions in due process hearings are final and not subject to review by the NJDOE/OSE, decisions of complaint investigations are subject to a second determination in a due process hearing, thus affording parents two opportunities for review of IEP team decisions. Due process hearings before an independent hearing officer are a procedural protection in IDEA and thus, allowing parents to seek a hearing after a complaint investigation report has been issued is a permissible as an option in addition to appeal of such OSE determinations to the Appellate Division of the N.J. Superior Court for judicial review of a final agency decision. Likewise, the additional features of due process hearings, such as discovery and cross examination of witnesses, and the judicial nature of such proceedings renders them significantly different from complaint investigations, and thus a permissible option even after a complaint investigation decision has been issued.
While there is much to be clarified with respect to how complaint investigations concerning placement and provision of a FAPE to students with disabilities will be conducted and resolved by the OSE, it is likely that the impact of the settlement agreement will include more filings against school districts, and thus, more staff time allocated to addressing such complaints, and potential added costs to implement decisions in these complaint investigations. School districts should be prepared to document compliance with required procedures for IEP team meetings and IEP development, as well as the basis for IEP team decisions. This should include strict adherence to timelines and procedural requirements, and thorough documentation in the IEP of data and assessments utilized, parental requests and consideration thereof, and the basis for all programmatic and placement decisions in each IEP. A careful and thorough process while gathering data, conducting meetings, and reaching determination of programs, services, and placement to provide a student a FAPE will make defending complaint investigation and due process hearing requests easier and less costly from a staffing (including morale) and fiscal standpoint.