N.J. Admin. Code § 6A:14-2.7

Current through Register Vol. 56, No. 8, April 15, 2024

Section 6A:14-2.7 - Due process hearings

(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.

N.J. Admin. Code § 6A:14-2.7

Amended by R.1998 d.527, effective 11/2/1998.
See: 30 N.J.R. 2852(a), 30 N.J.R. 3941(a).
Rewrote (d)3ii.
Amended by R.2000 d.137, effective 4/3/2000.
See: 31 N.J.R. 4173(a), 32 N.J.R. 1177(a).
In (a), changed N.J.A.C. reference.
Amended by R.2000 d.230, effective 6/5/2000.
See: 32 N.J.R. 755(a), 32 N.J.R. 2052(a).
Rewrote the section.
Amended by R.2002 d.79, effective 3/18/2002.
See: 33 N.J.R. 3715(a), 34 N.J.R. 1265(a).
In (b), inserted "or a" preceding "revaluation", and deleted "implement an initial IEP" preceding "or to release".
Amended by R.2003 d.387, effective 10/6/2003.
See: 35 N.J.R. 1991(a), 35 N.J.R. 4714(c).
In (a), substituted "Appendixes A and D" for "Appendix" in the third sentence, and amended N.J.A.C. reference at the end.
Amended by R.2006 d.315, effective 9/5/2006.
See: 38 N.J.R. 2253(a), 38 N.J.R. 3530(b).
Rewrote the section.
Notice of readoption with technical change.
See: 45 N.J.R. 1909(c).
Petition for Rulemaking.
See: 49 N.J.R. 285(a).

Amended by 52 N.J.R. 1822(b), effective 10/5/2020