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The NJ DOE revised due process hearing procedures following Federal finding of non-compliance: Will this help shift the dialogue about special education dispute resolution?

Introduction

On August 6, 2019, the New Jersey Department of Education (“NJ DOE”) issued numerous revisions to the State’s procedures for special education due process hearings in response to a finding of non-compliance by the federal Office for Special Education Programs (“U.S. OSEP”).

Consider yourself lucky if you’ve never been involved in a special education hearing or do not know what one is, because, unfortunately, New Jersey has been in the top ten states for the number of hearings for years. https://www.cadreworks.org/resources/cadre-materials/2016-17-dr-data-summary-new-jersey. In addition to the State’s high volume of hearing requests, it has a track record of failing to issue decisions within required timelines, one factor prompting the required changes.

This blog will provide some basic information on the revised procedures. I bring attention to this topic for another reason: to encourage a stronger dialogue about early resolution of special education disputes.

Why were due process hearing procedures changed by the NJ DOE?

The updated procedures were issued in response to a mandate from the U.S. OSEP. Back in May of 2019, OSEP cited NJ for failure to comply with timelines and other hearing procedures under the Individuals with Disabilities Education Act (“IDEA”). You can read the OSEP’s findings here: https://assets.njspotlight.com/assets/19/0527/2118.

The OSEP found violations of New Jersey’s policies and procedures relating to:
• meeting the IDEA’s 45-day hearing requirement;
• conducting Resolution Sessions;
• conducting expedited hearings; and
• stay-put compliance (i.e. maintaining a student’s last agreed-upon education program during a hearing).

Pursuant to OSEPs findings, NJ had 90 days from May 6, 2019, to institute required corrective action– hence the changes issued last week.
Prior to the U.S. OSEP citation, the issue of protracted hearings and need for more Administrative Law Judges (“ALJ’s) was the subject of much scrutiny and discussion. New Jersey Common Ground offered a great snapshot of the issues in 2018 here: https://www.njcommonground.org/snapshot-how-long-does-it-take-for-special-education-cases-to-be-decided-in-new-jersey/. In an excellent report, the New Jersey Special Education Practitioners (“NJ SEP”) confirmed that, on average, it took 212 days to obtain a decision in an NJ special education due process hearing. The NSEPs informative report is available on the NJ Education Law Center’s website: https://edlawcenter.org/news/archives/special-education/report-special-education-hearing-delays-gross-denial-of-justice.html).

Where can one find the new hearing procedures and DOE guidance?
The State issued the required changes in “Broadcasts.” Broadcasts are written guidance from NJ DOE that often contain important information about the Department’s directives, interpretation of unclear state regulations, policies and procedures. Here is a link to all Broadcasts: https://homeroom5.doe.state.nj.us/broadcasts/.

Here are the Broadcast memos about the new special education hearing procedures:

What does the new guidance say and mean?

Here is a very basic summary of the guidance.
1. The guidance on “Revised Procedures for Conducting Due Process Hearings” covers the following changes:
• New requirements for detailed, formal documentation and data collection by the Office of Administrative Law (OAL) and NJ DOE on compliance with federally required hearing timelines. According to the guidance, NJ DOE will post this new data on its website.
• In 2020 the NJ DOE and OAL will launch a “pilot program” to use Independent Hearing Officers (“IHOs”) specially trained and assigned to preside over special education cases only. The NJ DOE says more information about this initiative will be announced in the future.

2. The guidance on “Revised Procedures for Expedited Special Education Due Process Hearings” covers some of the following changes:
• A prohibition on either party filing a sufficiency challenge to a request for expedited due process hearing.
• Similarly, a prohibition on requests for an adjournment when a request for an expedited hearing is filed, on the same basis.
Both of these changes correct language in the current NJ dispute resolution manual, and actual practice, permitting sufficiency challenges and adjournments during expedited hearings in violation of the IDEA, which does not allow these legal maneuvers during expedited hearings. A sufficiency challenge and/or request for adjournment could delay a decision in an expedited hearing beyond the required 20 days.

3. The guidance on “Revised Procedures for Conducting Special Education Resolution Meetings” requires school districts to properly document and report that it conducted a Resolution Session within 15 days of a parent’s request for a due process hearing. See N.J.A.C. 6A:14-2.7(h). Resolution Sessions, intended as a mechanism for parties to try and resolve the dispute without a hearing, are required under the IDEA. See 34 C.F.R.§300.510.
• Until now, there was no formal mechanism in place to monitor compliance with this IDEA requirement; sometimes Resolution Sessions did not occur.
• Both parties can still waive the Resolution Session, if documented in writing.
• Both parties can still agree to Mediation through the DOE rather than proceeding directly to a hearing.
• The guidance authorizes the NJ DOE to enforce compliance through a “corrective action plan,” should a district fail to conduct a Resolution Session within the required timeline. The guidance does not explain what corrective action the DOE can use.

4. The guidance on “Revised Procedures for determining a Student’s Status During a Special Education Due Process Hearing” revises language in The New Jersey Parental Rights in Special Education (NJ PRISE) https://www.state.nj.us/education/specialed/form/prise/prise.pdf that contradicts the IDEA’s stay-put requirement. See 34 C.F.R. §300.518.
• Previously, the PRISE incorrectly stated that a child’s “stay-put” only went into effect when a parent requested a hearing within 15-days of receipt of notice of the change in placement or program. Note that as of the date of this blog, there does not appear to be a new version of the PRISE posted on the NJ DOE website.
• The new guidance clarifies that, in accordance with the IDEA, a student will “stay-put” in their last agreed upon educational program during a hearing, even if the hearing is not requested within 15 days of the proposed change.

Can we shift the dialogue about special education dispute resolution in NJ?

Where do these changes leave parents and schools? First, the right to seek an IDEA due process hearing has not changed; hearing requests can still be filed like always.

At the same time, schools and parents might wisely consider OSEP’s findings as another good reason to collaborate or utilize alternative dispute resolution options. Both parents and schools can request state mediation or a facilitated IEP meeting (https://www.nj.gov/education/specialed/iep/facilitated/Brochure.pdf). Both mediation and facilitation are conducted by professionals with training and expertise in special education and dispute resolution.

If NJ continues to have one of the highest levels of hearing requests in the nation, I know I am not alone in hoping NJ will work to improve its current dispute resolution as well as exploring other system-wide changes.

In addition to gathering more accurate hearing timeline and procedural compliance data, will the state also gather data on the factors contributing to the hearing requests, issues, party costs and perhaps most importantly – outcomes? In 2015, the state’s Task Force on Improving Special Education Outcomes recommended a “focused study” on the state’s dispute resolution process. Perhaps the study is on-going; however, as far as I know, the Task Force is no longer active. Some of its other recommendations have been implemented, with great success. https://www.nj.gov/education/specialed/highlights/TaskForceReport.pdf

Given the new IHO pilot program, NJ must be examining practices used in states with more successful special education dispute resolution. Parents and educators would welcome state-level updates on this. After all, best practices are used right next-door in Pennsylvania, at the nationally recognized Office for Dispute Resolution,. https://odr-pa.org/, https://www.cadreworks.org/resources/cadre-materials/exemplar-state-profiles.

The Advo-Kids team seeks a broad, solution-focused dialogue about special education disputes. While we utilize litigation when necessary, we wholeheartedly implement collaborative advocacy and aim to prevent litigation whenever possible. If your team is struggling to agree on a student’s needs, the school district’s obligations, how to implement a program, or just about any other IDEA issue, we can help. Through customized facilitation, coaching and advocacy to a school or parent, we strive to re-focus all participants and help create productive communication.

Would you like to contribute to the dialogue? We welcome your questions, corrections, criticism or additional information. Email me at Jlenhart@posternockapell.com.

© 2019 Advo-Kids, “All Rights Reserved.” This article is for educational purposes only; it does not provide legal advice. Please be advised that there is no attorney-client relationship between you and Advo-Kids or this author. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Special Education Due Process hearings are conducted in all states pursuant the Individuals with Disabilities Education Act (“IDEA”), to resolve disputes about students’ rights to Free Appropriate Public Education. See 34 C.F.R.§300.511.
The 45-day timeline violations are also the subject of a class action suit in New Jersey, see J.A., et al. v. New Jersey Department of Education, et al., Civil No. 1:18-cv-09580 (D.N.J., filed April 22, 2019).

September 19, 2019
Update: Since this blog was posted the NJ DOE Office of Special Education has added the revised hearing procedures, along with a finalized, August 2019 version of the PRISE to its website. Find all the documents at:

https://www.nj.gov/education/specialed/disputes.html