N.J. Admin. Code § 6A:3-8.1

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

Section 6A:3-8.1 - Exceptions to general appeal requirements

(a) Appeals of district board of education determinations with respect to entitlement to attend school pursuant to N.J.S.A. 18A:38-1 and N.J.A.C. 6A:22 shall generally proceed in accordance with the provisions of N.J.A.C. 6A:3-1, except as set forth below.

1. Petitions in letter form shall be accepted from pro se petitioners, provided that such petitioners use the form provided by the Department or prepare a letter wherein they:

i. Identify themselves by name, address, telephone number, and, where available, fax number and e-mail address;

ii. Identify the respondent district board of education;

iii. Clearly indicate that they are appealing from a determination of ineligibility to attend school in the school district based upon residency or domicile and provide the date on which such determination was made; and

iv. Include a signed attestation, which need not be notarized, that:

(1) Their claim of entitlement is based upon facts that are true to the best of their knowledge and belief; and

(2) They understand that they may be assessed tuition for the period of the child(ren)'s ineligible attendance and that such assessment may be recorded on the judgment docket of the court, if the Commissioner determines that the appeal has been abandoned or withdrawn and/or that the child(ren) are ineligible for a free education in the district.

2. Petitions from pro se petitioners need not be served on the respondent district board of education, but may be filed solely with the Office of Controversies and Disputes (Office). Upon the receipt of any such petition, the Office will transmit, by facsimile or electronic mail, a copy of the petition and its appended supporting materials, if any, to the district board of education and the executive county superintendent, together with notice of the district board of education's obligation to answer the petition pursuant to N.J.A.C. 6A:3-1.5 and to effectuate, pursuant to N.J.S.A. 18A:38-1, the attendance of petitioners' child(ren) pending the outcome of the appeal.

i. Nothing in (a)2 above shall preclude a pro se petitioner from serving a petition on a respondent district board of education in accordance with N.J.A.C. 6A:3-1.3. In such cases, the district board of education's obligation to answer the petition pursuant to N.J.A.C. 6A:3-1.5 and to effectuate, pursuant to N.J.S.A. 18A:38-1, the attendance of petitioner's child(ren) pending the outcome of the appeal, shall commence on receipt of the petition, rather than on any subsequent notice from the Office.

ii. Petitions filed by represented petitioners shall conform to the requirements of N.J.A.C. 6A:3-1.3, including proof of service on the district board of education. Such petitions will not be transmitted to the district board or executive county superintendent by the Office of Controversies and Disputes as set forth in this section; however, upon receipt of any such petition, the Office will transmit by facsimile the notice of the district board of education's obligation to answer the petition pursuant to N.J.A.C. 6A:3-1.5 and to effectuate, pursuant to N.J.S.A. 18A:38-1, the attendance of petitioners' child(ren) pending the outcome of the appeal.

3. In any instance where a petitioner has not included a copy of the district board of education's written determination of ineligibility as part of the petition, the district board of education shall file a copy of such determination with its answer.

4. Petitions shall be filed by the parent or guardian with whom the child lives in the school district.

(b) Where appeal is taken from a determination of ineligibility under N.J.S.A. 18A:38-1.b(1) ("affidavit" students), such appeal shall be filed by the resident making the claim of entitlement and shall not be filed by the parent or legal guardian.

(c) Hearing of appeals filed pursuant to this subchapter shall be on an expedited basis in accordance with the provisions of 18A:38-1.

(d) Where a petition is abandoned through withdrawal, failure to prosecute, or any means other than settlement agreeing to waive or reduce tuition and the Commissioner determines that the child(ren) are ineligible for a free education in the school district, and where the record includes a calculation reflecting the rate(s) of tuition for the year(s) at issue, the per diem rate of tuition for the current year, and the date on which the student's ineligible attendance began, payment of tuition, consistent with the provisions of N.J.A.C. 6A:22-6, may be ordered by the Commissioner in the decision finding abandonment of the appeal. Where the record does not include such a calculation, but the district board of education has filed a counterclaim for tuition along with its answer to the petition, the counterclaim shall proceed to hearing at the OAL notwithstanding that the petition has been withdrawn or abandoned.

(e) Nothing in this subchapter shall preclude a district board of education from seeking payment of tuition, consistent with the provisions of N.J.A.C. 6A:22-6.1(a), for a student it determines to be ineligible to attend school in the school district.

(f) Where the petition of appeal is filed within 21 days following a notice of ineligibility, the student may continue to attend school while the appeal is pending. After the 21-day period, the petitioner shall file a petition in accordance with N.J.A.C. 6A:3-1.3 and a motion for emergent relief pursuant to N.J.A.C. 6A:3-1.6. The petitioner must prevail on the motion for emergent relief in order for the student to continue to attend school while the appeal is pending.

(g) The provisions of this subchapter shall not apply to disputes arising from a district board of education's assignment of a student to a particular school within the school district or to appeals of district board of education determinations not to permit continued attendance by a student who was, but no longer is, eligible to attend school in the district. Such disputes shall be filed, and proceed, in accordance with the general provisions of N.J.A.C. 6A:3-1.

N.J. Admin. Code § 6A:3-8.1

Amended by 49 N.J.R. 2516(b), effective 8/7/2017

Amended by 51 N.J.R. 723(a), effective 5/20/2019