N.J. Admin. Code § 8:17-13.16

Current through Register Vol. 56, No. 11, June 3, 2024

Section 8:17-13.16 - Procedural Safeguards Office complaint process responsibilities

(a) The Procedural Safeguards Office shall investigate any complaint it receives including individual child complaints and those that are systemic in nature.

(b) Upon receipt of a complaint that generally affects only a single child or the child's family, and that is not directed against a policy, pattern, or practice that is alleged to be a violation of Part C of IDEA or State early intervention law or guidelines, the Procedural Safeguards Office shall notify the parent and/or the parent's authorized representative as to the availability of mediation and/or impartial due process hearing proceedings, and the procedures to request such proceedings.

(c) If a complaint addresses matters that are also the subject of a pending impartial due process hearing, or contains multiple issues, among which, one or more is the subject of a pending impartial due process hearing, the Procedural Safeguards Office shall sever the part of the complaint that is the subject of the impartial due process hearing until the conclusion of the hearing.

1. Issues in a complaint that are not the subject of the pending impartial due process hearing, including any allegations of systemic violations, shall be resolved within 60 calendar days.

(d) The Procedural Safeguards Office shall:

1. Date-stamp each written complaint immediately upon receipt;

2. Maintain a log of all complaints (complaint log) that shall consist of:

i. The date the Procedural Safeguards Office received the complaint;

ii. The name of the complainant,

iii. The completion date of each step in the process; and

iv. The date on which the Procedural Safeguards Office sends the complaint determination to the complainant.

3. Create a file containing all documents related to the complaint; and

4. Review the complaint and determine within seven days of the date of complaint receipt that the complaint raises issues that:

i. Constitute a matter involving Part C of IDEA that the Procedural Safeguards Office will investigate through the Part C of IDEA complaint system;

ii. Constitute a matter that does not involve Part C of IDEA; or

iii. Have previously been decided in an impartial due process hearing involving the same parties.

(e) If the Procedural Safeguards Office determines pursuant to (d)4ii above that a complaint raises no issues that are matters involving Part C of IDEA, the Procedural Safeguards Office shall notify the complainant within two business days of that determination and the matter will be closed.

(f) If the Procedural Safeguards Office determines pursuant to (d)4iii above that a complaint raises issues that an impartial due process hearing decision addresses, then the Procedural Safeguards Office shall proceed to investigate in accordance with this section only those issues the complaint raises, if any, that the impartial due process hearing decision does not address, and the Procedural Safeguards Office shall notify the complainant within two business days:

1. Of the issues as to which the impartial due process hearing decision applies;

2. That the Procedural Safeguards Office shall undertake no complaint investigation with respect to those issues already adjudicated in that hearing decision; and

3. That the Procedural Safeguards Office shall investigate, pursuant to this section, only those issues the complaint raises, if any, that the impartial due process hearing decision does not address.

(g) If the Procedural Safeguards Office determines pursuant to (d)4i above that a complaint raises issues that are matters involving Part C of IDEA that the Procedural Safeguards Office will investigate through the Part C of IDEA complaint system, the Procedural Safeguards Office shall:

1. Determine if it is possible to investigate the complaint while maintaining confidentiality of the complainant's identity, if the complainant has requested anonymity, and:

i. If so, the Procedural Safeguards Office shall remove all personally identifiable information from the complaint and any accompanying documentation throughout the complaint investigation and proceed to (g)2 below; or

ii. If not, the Procedural Safeguards Office shall notify the complainant that it is not possible to conduct the investigation without acknowledging the complainant's identity and shall determine in consultation with the complainant whether the complaint investigation shall proceed, and if not, shall close the complaint;

2. Transmit a notice to the local or regional provider agency, the person or entity whose actions or failure to act are the subject of the complaint, and the complainant within two business-days of that determination that consists of:

i. A summary of the complaint;

ii. The determination of the Procedural Safeguards Office as to the necessity of an on-site investigation;

iii. A statement that no change in the provision of services shall occur during the complaint investigation and that any retaliation against the complainant is unlawful and may lead to other proceedings;

iv. An invitation to submit to the Procedural Safeguards Office any written or verbal information responsive to the allegations in the complaint within seven business-days of receipt of the notice; and

v. The statement that failure to cooperate with the investigation shall subject non-cooperating parties to sanctions, including contract termination, cessation of payment, and other action; and

3. During the 10 days following its receipt of the complaint, notify the parties as to the availability of formal or informal mediation to resolve the complaint.

i. Should the parties agree to formal mediation, the mediation procedure in this subchapter applies.

ii. The parties shall conclude formal or informal mediation offered pursuant to this paragraph within 15 calendar days and a mediation undertaken pursuant to this paragraph shall not delay the 60-calendar-day timeline for resolution of the complaint.

iii. If formal or informal mediation undertaken pursuant to this subsection results in a resolution or a determination that the parties are unable to resolve the matter through mediation, the Procedural Safeguards Office shall maintain the written resolution or determination in the complaint file.

iv. If mediation results in resolution of the complaint, the Procedural Safeguards Office shall request the complainant to sign a written withdrawal of the complaint, and the Procedural Safeguards Office shall close the matter.

(h) The Procedural Safeguards Office shall conduct a complaint investigation by:

1. Determining if an on-site investigation is necessary, and conducting the on-site investigation;

2. Reviewing all relevant information, including the results of any on-site investigation, pertinent written records and documents, such as forms, reports and files, and any additional information provided by the parties;

3. Conducting personal interviews with the complainant and other and any other relevant parties, as necessary;

4. Contacting other individuals, including advocates or other parties, who may have important knowledge or information relative to the complaint, or specialized expertise pertinent to the complaint, as necessary; and

5. If the complaint challenges the appropriateness of decisions regarding a child's services or placement, evaluating whether responsible parties adhered to required procedures and whether the decision they reached is consistent with Part C of IDEA, in light of the individual child's abilities and needs.

(i) The Procedural Safeguards Office shall resolve a complaint investigation and implement findings as follows:

1. Within 60 calendar days of receipt of the complaint, unless exceptional circumstances exist with respect to a particular complaint, the Procedural Safeguards Office shall issue a written determination to the complainant and the interested parties that addresses each allegation in the complaint and contains:

i. Findings of fact and conclusions and the reasons for the Procedural Safeguards Office's final decision;

ii. A directive to responsible parties to develop and implement any necessary plan of action that outlines procedures for effective implementation of the final decision;

iii. A description of any necessary technical assistance activities, negotiations, and corrective actions that any party is to undertake to achieve compliance;

iv. A directive and instructions for development, submission, and implementation of any necessary corrective action plan, specifying the dates by which corrective actions are to be implemented;

v. A statement of remedies when a denial of necessary services occurred, including, as appropriate, the awarding of monetary reimbursement or other corrective action appropriate to the needs of the child and the child's family and appropriate future provision of services for all infants and toddlers with disabilities and their families; and

vi. If an agency providing services pursuant to the EIS has failed or refused to cooperate with a complaint investigation, and/or has taken retaliatory action against any complainant, a finding of failure or refusal to cooperate that outlines the specific nature of the failure or refusal to cooperate and directs the corrective actions to be taken, which actions may include cancellation of contract, cessation of payment, disqualification as a service provider, and/or action(s).

(j) As appropriate under the circumstances of the complaint, the Procedural Safeguards Office shall transmit a copy of the decision to the child's local or regional provider agency and the child's service coordinator.

(k) If the Procedural Safeguards Office determines as a result of the complaint investigation that a participating provider or provider agency is disqualified from providing EIS services, the Procedural Safeguards Office shall immediately issue written notification of cessation of services and cancellation of any applicable contract, in accordance with contract procedures.

(l) If as a result of a complaint investigation the Procedural Safeguards Office declares a participating agency to be disqualified or ineligible to continue to provide EIS services, the Department shall work with local and regional provider agencies and service coordinators to notify parents immediately by whatever means available of any change in the provision of EIS services and the parents' right to access dispute resolution procedures.

1. The Procedural Safeguards Office shall follow a notice issued pursuant to (k) above with formal written notice in the ordinary course.

2. The Department and local and regional provider agencies and service coordinators shall conclude the substitute arrangement for the provision of services by a qualified provider within 10 business days, and shall arrange for appropriate compensation to families for missed services during this period.

(m) The Procedural Safeguards Office shall provide for the periodic review of the subject of the investigation until the full implementation of a corrective action plan, and may include, as appropriate, on-site follow-up investigation and routine monitoring, which actions the Procedural Safeguards Office shall record in the complaint log.

N.J. Admin. Code § 8:17-13.16