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Feds Order NJ to Come Up with Better Way to Resolve Special-Ed Disputes

New Jersey has been given three months to improve its much-criticized process for settling disputes involving students in special education

Lamont Repollet
Education Commissioner Lamont Repollet and DOE were given 90 days to fix special-education disputes process.

New Jersey’s judicial system for resolving special education disputes has itself been long in dispute over arguments that it takes too long, costs too much, is biased toward districts, or is biased toward families.

Now the federal Department of Education has entered the debate, this month ordering the state to come up with a better due-process system within three months. It said the current process involving the Office of Administrative Law has left too many cases unresolved for too long.

The Murphy administration’s response for now is to pilot a system outside the courts altogether, setting up a team of quasi-judicial hearing officers to hear and decide disputes. The state Department of Education released the outlines of the plan on Friday, after NJ Spotlight inquired about the federal order.

Separately, Senate President Steve Sweeney last week proposed as part of his Path to Progress legislation the hiring of additional administrative law judges to specifically hear special-education cases.

Whatever the final remedy, one prominent advocate this weekend said it’s a start that the state is finally addressing the long-running issue, with now the feds watching.

Lots of disputes in NJ

“The state has admitted this is a problem for a long time, and there have been steps taken with mixed success,” said Diana Autin, co-director of the Statewide Parent Advocacy Network.

“But we haven’t had before the US DoE give us 90 days to fix it — and promising to check back until we do,” she said.

New Jersey is one of the country’s leaders for the number of special-education disputes that go to due process each year, typically seeking to resolve differences in critical decisions about where a child is placed for schooling or the specific services to which he or she is entitled.

The case count varies by source, but the state says the number of complaints filed with the department has risen from 1,477 in 2014 to 1,811 last year. Most of those are resolved or dismissed before final adjudication, according to federal data, but whatever the result, the path to resolution is a long and fraught one before administrative law judges who have a full docket as it is.

After an investigation responding to individual complaints this winter, the federal government apparently believes that path to resolution is too long.

Cases are supposed to be resolved in 45 days

Under federal and state law, cases must be resolved within 45 days, but the feds found the state had failed to properly monitor for such compliance and even contributed to the delays with its loose rules for how those days are counted or how adjournments are allowed.

Autin, whose organization represents scores of families in the system, said cases exceeding the 45 days are “very, very common.”

“We’ve had parents where it took two years because of all the adjournments,” she said. “This is already a difficult and stressful time for families. We should be wanting to reduce that as much as possible.”

The May 6 letter from the federal Department of Education’s Office of Special Education Programs (OSEP) required the state to put in place a mechanism to bring it in compliance with the 45-day rule by August. In addition, it requested the state to tighten its processes for resolving disputes earlier and determining what happens to students during the disputes.

“Based on a review of documents and interviews with state personnel, OSEP determined that the state does not have procedures for ensuring the decisions in due process hearings are issued within the 45-day timeline or within allowable extensions,” the federal report read.

New ‘independent hearing officers’

In a lengthy response to NJ Spotlight’s inquiry last week, the Murphy administration said it had been closely monitoring and discussing the issue for close to a year and meeting with stakeholders on ways to improve the process.

It said that the state would issue requests for proposals this summer for the creation of a system employing quasi-judicial “independent hearing officers” to hear cases. The officers would be former special education administrators, lawyers and others familiar with and trained in special education law.

To start, the new system would allow voluntary participation by school districts, and parties in the disputes would retain their legal rights, including the right to appeal the hearing officers’ decisions.

At the same time, the Legislature also could take up the issue, working to bolster the ALJ ranks to devote new judges specifically to special education cases. Sweeney, the Senate president, included such a bill in his recent package of more than two dozen bills aimed at putting the state on a firmer financial footing.

The education bills in the package lean heavily toward reducing the high and unpredictable costs of special education, especially for those students with the greatest needs. One bill would move to increase the state’s share in paying for students where the costs exceed $55,000.

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