by John Worthington, Esq., Coordinator of Special Education Law
New Jersey’s special education procedural protections and dispute resolution system have been undergoing, and will continue to undergo, significant changes to policies and procedures compelled by settlements in two recent lawsuits. Initially, in April of 2023, the New Jersey Department of Education settled litigation and agreed to change its special education complaint investigation procedures. While there were numerous provisions in the settlement, the most significant is that the department of education will now investigate program, placement, and free, appropriate public education (FAPE) determinations by school district individualized education program (IEP) teams with respect to individual students. The State also recently settled litigation concerning its special education dispute resolution system, specifically with respect to special education due process hearings. That settlement agreement is aimed at having almost all due process hearings occur within 45 days and minimizing extensions of time that result in hearings occurring over significant time periods. Each of these settlement agreements will have substantial impacts on school districts, both with respect to impacts on school personnel, and potentially with respect to school finances in the form of time spent defending complaint investigations, and possibly with respect to litigation costs.
Initially, the state complaint investigation settlement significantly expands the scope of what the department of education will investigate. Historically, the department did not review and investigate IEP team decisions to assess whether the program, placement and FAPE decisions were appropriate for an individual student. This agreement thus represents a significant change in how IEP team decisions are reviewed. Previously, such decisions could only be challenged in a special education due process hearing, where an administrative law judge (ALJ) would hear testimony and review evidence and determine the appropriate program and placement, as well as determining what constitutes a FAPE for a student with a disability. The change allows parents to seek a review by the department of education prior to, or in addition to, requesting a due process hearing to review IEP team decisions.
This agreement could require that school districts defend their decisions in multiple forums if parents choose to avail themselves of the complaint investigation process prior to filing for a due process hearing. The review by the state department of education will be different than a due process hearing. State complaints involve interviews of relevant persons and a document review. However, they do not include a formal hearing with testimony and cross examination of witnesses. This process must be completed within 60 days and a decision issued by that time. Thus, the review by the department of education will be less formal and faster.
State complaints will have to be filed prior to a filing for a due process hearing for parents to seek a review in both forums, as IDEA and State regulations mandate that a complaint investigation be held in abeyance if there is a pending request for a due process hearing on the same issue(s). This is because the state department of education cannot alter decisions in due process hearings. Therefore, if both processes are to be utilized, the state complaint would have to be filed first. If the parent is not satisfied with the determination by the department, they could then file for a due process hearing. Because there is a one-year time limitation period to file a complaint, and a two-year limitation period for due process requests, there would be plenty of time for a parent to file for both within the applicable limitation periods. One significant factor impacting whether a state complaint would be filed before a due process hearing is whether the parent is seeking a stay put, which is an automatic injunction requiring that a district keep a student with a disability in their current educational placement when a timely request for a due process hearing is filed after an IEP team decision changing a student’s placement is made and written notice provided to the parent. A stay put may only be obtained by filing for mediation or a due process hearing, not a state complaint investigation. Therefore, if a stay put is being sought, the parent would have to skip the state complaint process and file for mediation and/or a due process hearing. While the settlement agreement is too recent to see trend data on numbers of requests for complaint investigation, it has the potential to increase such filings, thus increasing the work of school district staff that must gather and provide documentation, and participate in interviews in order to defend the complaint.
With respect to the settlement of the litigation over the timing of special education due process hearings, the impact will likely be more significant for school districts. While federal law states that special education due process hearings must be completed within 45 days, it also permits extensions of the 45-day timeline at the request of the parties to the dispute (the parent and the school district). Based on numerous factors such as available dates for the ALJs and attorneys representing the parties, parties seeking time to obtain expert reports, review proposed placements, and discovery issues, this has historically resulted in hearings sometimes taking over a year to reach a final decision. While most cases settle at mediation or while the due process hearing is pending, those hearings that do not settle typically take much longer than 45 days to be completed and receive a final decision from the ALJ.
The settlement agreement mandates that, when a case goes to hearing, it be completed in a significantly shorter time-period. The agreement calls for 95% of cases to be completed within 45 days during an initial four-month compliance assessment period. The agreement includes appointing a compliance monitor to ensure that timelines are adhered to in accordance with the agreement. The agreement to complete hearings in a significantly shorter time period has the potential to create several burdens for school districts but could potentially also result in lower attorney fees should the parent prevail in the litigation.
Initially, it must be noted that the potential changes to the due process hearing system will almost certainly include stricter rules on obtaining extensions of time to complete hearings. To meet the goal for completing hearings within 45 days, parties cannot be granted many, if any, extensions of time. This will also likely include scheduling changes to provide for consecutive hearing dates, or more dates within a shorter time period to expedite completion of hearings and issuance of final decisions. To accomplish this, the State will likely need to appoint the ALJs called for in legislation enacted two years ago that requires formation of a special education unit in the office of administrative law. Absent an influx of ALJs dedicating their time exclusively to special education due process hearings, meeting the timeframes in the settlement agreement appears unlikely.
Likewise, any rule changes affecting how due process hearings are conducted will have a significant impact on school districts. As the party with the burden of proof and production under New Jersey law (districts must go first and prove that they provided the student a FAPE, or developed an IEP designed to do so), districts will have to be ready to go to a hearing immediately after the 30 day resolution period and produce testimony and evidence meeting the applicable standards in the U.S. Supreme Court’s Endrew decision to demonstrate that they are providing the student a FAPE. This must occur with little preparation time, as districts will not typically know a parent intends to file for a due process hearing before the request is filed. Unlike in the past, if changes to the system are implemented to speed-up the process, district staff will have to scramble to prepare for and litigate the cases. This could also result in more costly settlements because of the time pressure on districts, as well as the need for, and cost of, staff to cover for those that must testify and participate in the hearings.
While it is uncertain when changes will be made to the due process hearing system, or the impacts of complaint investigations concerning program, placement and provision of a FAPE to students with disabilities, it is certain that these settlements will impact the work of special education departments in school districts. The likelihood of more complaint investigation requests, coupled with added burdens in defending requests for due process hearings, will likely have logistical, fiscal and emotional impacts on districts and staff. Districts should be aware of these changes and prepare for how these matters will be addressed if requests for complaint investigation or due process hearings are filed against them. While it will take time to see the exact impacts of these settlements, their potential to impact school district operations and finances necessitates awareness and some preparation. Districts should emphasize documentation of all IEP team decisions, and organization and retention of such documentation as a matter of standard operating procedure to allow for expedited preparation for defending both requests for complaint investigations and due process hearings. This will also assist with reducing the stress on staff when such requests are received and preparations for defending such actions must be made.