Increasing the dialogue among stakeholders in New Jersey’s special education system

Q&A: Dispute Resolution

Apr 20, 2023 | Parents, Professionals, Special Ed Basics, Teachers

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special education basics badgeCommon Ground is committed to informing families and guardians about parental rights and special education advocacy.

In this and upcoming editions we will share a series of basic and important special education topics on the rights, responsibilities, administrative processes, and legal remedies parents and students may encounter, and to which they are entitled.

Disagreements between parents and school districts can arise over the identification, evaluation, classification, educational placement or the provision of a free, appropriate public education. The IDEA affords parents and school districts three ways to bring complaints and to resolve disputes. They are:

  • Mediation
  • Due process hearing
  • Complaint investigation.

Q: What is Mediation?
A: Mediation is a way to discuss and resolve disagreements between you and the school district with the help of a trained, impartial third person known as a mediator. Parents may, but are not required to, elect to engage in voluntary mediation before filing for a due process hearing. The State of NJ pays for the mediation, which is conducted by a trained, qualified, and impartial mediator. The NJ Office of Special Education Programs must schedule a mediation within 10 days of receiving a written request.

Click here to learn how to request mediation >>

Q: What is Due Process?
A: Due process is a formal judicial procedure that occurs before an administrative law judge (ALJ), and involves additional specific timelines. Both sides can request information, evaluations and records from each other and present evidence and legal arguments.

Parents must send a copy of their request for due process to the school district. The school district then has 10 days to respond to the parents’ complaint. The district is given thirty days to resolve the matter. During this time the district must convene a resolution session within fifteen days of the parent’s request for a hearing. If no resolution is reached within the thirty days, the NJ Department of Education refers the case to the Office of Administrative Law. The OAL judge must issue a formal, written decision within 45 days from when the matter was transmitted to the Office of Administrative Law, which is formal and binding on both parties, and must be implemented immediately.

Due process may be accelerated in certain circumstances:

  1. An “Expedited Due Process Hearing” may be requested by either the school district or parents when disciplinary matters are the subject of the hearing.
  2. Emergent Relief is a request to obtain an interim decision on certain issues being considered in a due process hearing. Emergent relief may be requested for the following issues:
    • Issues involving a break in the delivery of services (e.g. failure to provide a home instructor or a change in, or failure to provide, extended school year services);
    • Issues involving disciplinary action, including manifestation determinations and determinations of interim alternative educational settings;
    • Issues concerning placement pending the outcome of due process proceedings; and
    • Issues involving graduation or participation in graduation ceremonies.

Click here to learn how to file for Due Process >>

Q: Can I Appeal the Due Process Decision?
A: Yes. The decision of the ALJ in a due process hearing may be reviewed and changed by the United States District Court or the Superior Court of New Jersey in accordance with the rules of the court is which your appeal case is filed.

Q: What is Complaint Investigation?
A: A complaint investigation can be filed by anyone, not just a parent or school district. A complaint is filed with NJDOE’s Office of Special Education Programs (OSEP) describing the factual basis for the alleged violation of special education law by a school district or a private educational agency within the previous one year period, and a request for an investigation and corrective action plan to remedy violations.

If the written complaint contains issues that are also the subject of a due process hearing, OSEP will set aside those issues until the conclusion of the due process hearing. Additionally, if an issue raised in a complaint was previously decided in a due process hearing involving the same parties, NJDOE must inform the complainant that the hearing decision is binding. In all other cases, NJDOE must conduct an independent investigation of the complaint. OSEP must complete its investigation within 60 days of receipt of the signed complaint, although it may grant itself an extension if “exceptional circumstances” exist. A report of OSEP’s findings, conclusions and, in the event the school district is found to be in noncompliance with the law, the corrective actions required, must be sent to the complaining party and the school district. A proposed corrective action plan must be developed by any school district or private educational agency found to be in noncompliance with the law. The plan, which is submitted to NJDOE through the county office of education, must include, at a minimum, objectives and strategies for correcting the noncompliance, including resources needed to achieve plan objectives, and the dates by which the noncompliance will be corrected.

At this time there is no formal appeal process for complaint investigation determinations. However, the US Department of Education has issued guidance advising that a complaint investigation may be appealed by requesting a due process hearing.

Click here to learn more about complaint investigations >>

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