New State Guidance on Resolving Special Education Disputes

John Mooney | August 8, 2019 | Education
Every year there are hundreds of special ed disputes between school districts and families. The Department of Education has issued new rules in hopes of settling them more quickly

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Facing a federal order to speed up the process, the Murphy administration is attempting to address a longstanding challenge in how New Jersey’s public schools resolve hundreds of special education disputes every year.

The state Department of Education this week sent districts new guidance for adjudicating so-called “due process” cases between schools and families, requiring that cases be finished within the mandated 45-day time limit except for extenuating — and documented — circumstances.

It’s a high-stakes proposition, as these disputes often involve difficult and tense confrontations between families and school officials disagreeing on how a student’s disabilities should be addressed. Cases often take months, and sometimes years, to resolve. In the most recent year, the state documented more than half exceeding the 45-day limit.

As part of its new guidance, the administration also said it was proceeding with a pilot program to add non-judicial “hearing officers” to supplement the current corps of administrative law judges who now hear the nearly 2,000 cases each year.

The moves were in response to an order from the federal Department of Education this spring that cited the slow pace of “due process” cases in the state.

But the state’s guidance may prove to be easier said than done.

A complex issue

Newly required time limits — already technically a requirement under state and federal law — hardly ensure they will suddenly be followed, and some involved in the complex world of special education law said the problem remains in the sheer number of cases involved.

“The feds can say all they want and the state can say all it wants, but it’s still like trying to fit five pounds of sausage into a two-pound bag,” said David Rubin, a prominent school board attorney who has argued scores of these cases and met with state officials in trying to resolve the issue.

“Any way you slice it, with the high number of cases and the small number of judges and lawyers, we’re going to have problems,” said Rubin.

The state’s challenge is indeed daunting, as the rising number of cases — last year topping 1,800, a 22-percent increase from 2014 — has made special education disputes a fact of life for many districts. Besides the cost and time required, the toll on families and children is also indisputably high.

The overt purpose of federal and state requirements was that disputes reaching the legal phase get resolved in a timely manner and not drag on to the detriment to schools and families alike.

The state’s response is designed to add a level of accountability to the system, ensuring that delays in cases are at least documented. As part of the new guidance released yesterday, for instance, the state is requiring that either the school’s or family’s requests for extensions and adjournments — chief culprits in delayed cases — be fully explained. It does not elaborate on what happens when cases miss the deadlines.

Shortage of judges

The shortage of qualified judges to hear cases remains the biggest obstacle, however, and it’s unclear how much the addition of non-judicial hearing officers will resolve it. There are also questions as to who these officers would be.

“The hearing process won’t work if it doesn’t have credibility,” Rubin said. “There are very few people who are totally impartial, so where would they come from?”

Legislators have sought to add administrative law judges and even those devoted entirely to special education cases. Senate President Steve Sweeney said he is pressing a bill to add at least three new judges for these cases specifically.

“That’s great to add the [hearing] officers, but the administrative law judges are where they will end up,” Sweeney said yesterday. “So why not have judges who are trained, really trained to do just these hearings?”

Sweeney added that additional state aid to districts to pay for the most expensive special education cases would help lower the heat on disputes. In the state’s fiscal 2020 budget, Gov. Phil Murphy and the Legislature agreed to add $50 million in funding for so-called extraordinary aid for services exceeding $45,000 a year. “If we pay more of this, it will eliminate a lot of the challenges,” he said.