Special Education/504

In a case decided on February 11, 2020 by the United States District Court for the District of New Jersey, Camden Vicinage, the Eastampton School District (“District”) successfully dismissed a parent’s lawsuit brought under the Individuals with Disabilities Education Act (“IDEA”) on the basis that it was filed beyond the two-year statute of limitations. In McLean v. Eastampton School District, the parent of a special education student initiated a due process petition in August 2018 against the District alleging that an individualized education program (“IEP”) developed by the District in June 2016 failed to provide the student with a free appropriate public education (“FAPE”).

The District successfully argued before the Administrative Law Judge (“ALJ”) that the parent’s due process petition was time-barred because the parent filed it more than two years after the District proposed the June 2016 IEP. The ALJ found that the IDEA’s two-year statute of limitations began running on the date the parent “knew or should have known” of a FAPE violation. In this case, the parent warned the District as early as March 2016 that she believed the student was not receiving a FAPE and that she would be seeking tuition reimbursement. The parent also rejected the IEP in June 2016.

The parent appealed the ALJ’s decision to the District Court. In affirming the ALJ’s dismissal of the parent’s case, the District Court explained that the federal courts within the Third Circuit “have generally focused on clear action or inaction by a school district sufficient to alert a reasonable parent that the child would not be appropriately accommodated.” In the case at hand, the District Court determined that by June 2016, the parent knew that the District was not providing the educational services that the parent believed to be a FAPE. Therefore, the statute of limitations began to run in June 2016, and the parent’s filing of her lawsuit in August 2018 was time-barred – even if she was two months late.

In the world of special education, parents come in all shapes and sizes in terms of their mode of interaction with the child study team and school personnel.  Some parents of special needs children are cordial, while others are friendly and appreciative.  Some are matter-of-fact, while others can be much more emotional or animated.  Special education parents come with varying degrees of how engaged they are or wish to be in the process of planning and communicating with the school district child study team.  For the thousands of child study team members around the country who serve as case managers, working every day to implement the mandate of the IDEA and follow the complex set of procedural and substantive legal requirements that it implements for the education of special needs children, most can think of one or two families on their case load of students who are, well, a little “demanding” for lack of a better word, in terms of their desired level of communication with the school district.

So what happens when a child study team encounters a parent who sends e-mails every day or multiple times a day, expecting an immediate response from the case manager?  What happens when the level of parental communication is so excessive in its frequency or level of detail that it becomes burdensome for the child study team to constantly have to respond?  What about parents who send derogatory, harassing, hostile, or intimidating e-mails, letters, or phone calls to the team?

In a recent case, issued on January 17, 2020, the Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by a parent against a Washington school district which had put in place a communication plan that limited his communication with school district personnel in an effort to curtail the parent’s habit of constantly sending time-consuming and intimidating e-mails.  L.F. ex rel. K.S.F. & K.S.F. v. Lake Washington Sch. Dist. #414, No. 18-35792, 120 L.R.P. 1811 (9th Cir. 2020).  In L.F., the father of two daughters with anxiety and behavioral disorders had developed “an unproductive communication pattern” with the school guidance staff on his daughter’s Section 504 team, “sending incessant e-mails to staff accusing them of wrongdoing; making presumptuous demands; leveling demeaning insults; . . . and in face-to-face interactions, acting in an aggressive, hostile, and intimidating manner.”  The district employees complained that the father’s e-mails were extraordinarily time-consuming and made them feel threatened and intimidated.  As a result, the team developed a “communication plan” under which the child study team would no longer respond to the father’s constant e-mails about substantive issues concerning his daughter’s Section 504 plan.  Instead, under the plan, the father would have the opportunity to meet with district administrators every other week to discuss any parental concerns.  Later, after the father violated the plan by sending additional e-mails, the school district modified the plan to further limit the meetings with administrators from bi-weekly to once per month.

The father brought suit, asserting Section 1983 claims, arguing that the school district’s communication plan violated his First Amendment rights to free speech and constituted retaliation under Section 504 for his advocacy concerning his daughters’ special needs.  In affirming the grant of summary decision in favor of the school district, the Ninth Circuit held that no First Amendment violation occurred, because “the communication plan regulated the District’s conduct, not ‘the parent’s.]”  The court found that the plan was reasonable in light of the parent’s repeated e-mails to school staff.  Further, the three-judge panel noted that, even if the plan had restricted the parent’s free speech (which it did not), it still would not violate his First Amendment rights.  The court explained that the school was not an “open public forum,” but rather, a “limited public forum” in which the school district could set reasonable “time, place, and manner” restrictions on the parent’s communications with district staff.  Importantly, the bi-weekly meetings with administration permitted the parent an opportunity to meaningfully participate in the process and express parental concerns.

In sum, in cases where extreme, excessive, or offensive communications from parents become a burden on the child study team or district administration, school districts can put in place reasonable restrictions on parental communication.  The team should take care to design a plan that outlines the method of communication for the team in responding to excessive parental communication, meaning implementing strategies to deal with excessive communication from the parent, rather than purporting to control or restrict the communication of the parent directly, which generally cannot be controlled.  Districts should use caution, however, to do so through the formal IEP or Section 504 meeting process, and to clearly set forth any restrictions or limitations in a written communication plan incorporated into the student’s IEP or Section 504 plan. 

In doing so, the school district should pay special attention to ensure there are adequate alternative avenues for the parent to communicate parental concerns in a non-burdensome manner.  So long as the plan is reasonable in light of the parent’s pattern of excessive or aggressive communication, and provides alternative methods and means of parental communication and participation, the district should be able to avoid liability or a finding that it has unreasonably impaired the parent’s ability to meaningfully participate in the process of discussing and planning for their child’s education.

Occasionally, school district child study teams (“CSTs”) are faced with special education parents who are resistant to allowing the CST to evaluate their child, yet demand independent evaluations from an outside evaluator at the school district’s expense.  In such circumstances, districts were often faced with a dilemma – either acquiesce to such demands, or file for due process themselves and incur legal fees to resist such requests, or deny the parent’s request without filing for due process and risk an Administrative Law Judge (“ALJ”) finding that the district committed a procedural violation.  This is because previous decisions of the Office of Administrative Law have rendered conflicting opinions from ALJs on the proper interpretation of N.J.A.C. 6A:14-2.5(c) and the important issues of (1) whether a parent could request an independent educational evaluation (“IEE”) at any time, or only in response to a disagreement with an evaluation or reevaluation conducted by the District, and (2) whether it was necessary for the district to file for due process to resist an IEE request from a parent even when the parent had no disagreement with a district-conducted evaluation.  In a recent decision issued on December 13, 2019, the Third Circuit has now clarified the law on this important issue.  M.S. & S.S. o/b/o H.S. v. Hillsborough Twp. Pub. Sch. Dist., No. 19-1510 (3d Cir. Dec. 13, 2019).

Under the Individuals with Disabilities Education Act (“IDEA”), school districts are required to evaluate special education students in all areas of suspected disability, both at the time the child study team (“CST”) initially considers whether the student is eligible for services and on an ongoing basis with triennial reevaluations every three years, or sooner if circumstances warrant, unless the parent and CST decide that such reevaluations are unnecessary and mutually agree to waive them.  Federal regulations provide a mechanism for a parent to obtain an IEE from an evaluator not employed by the school, at the expense of the public, “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.”  34 C.F.R. 300.502(b).  In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees.  N.J.A.C. 6A:14-2.5(c).  Parents are entitled to only one IEE each time the district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments. 

In Hillsborough, the parents initially signed consent to a reevaluation plan to permit reevaluations of their son by the CST.  Yet, before it could be conducted, the parents rescinded their consent to the district’s reevaluation, and instead they made a written request for an IEE at district expense.  The Hillsborough CST denied the parents’ request, explaining that their entitlement to request an IEE at public expense hinged on their having a disagreement with an evaluation or reevaluation conducted by the district.  The district further denied that it was obligated to file for due process within 20 days of the parents’ written request under N.J.A.C. 6A:14-2.5(c).  The parents then filed for due process and sought reimbursement for the IEE, which they had obtained at their own expense.

The ALJ rendered an initial decision on the issue and ordered Hillsborough to reimburse the parents for the cost of the IEE.  On January 31, 2019, the U.S. District Court for the District of New Jersey reversed the ALJ and issued a decision clarifying the circumstances under which parents can request independent educational evaluations (“IEEs”) from local school districts at the expense of the public and how a district is obligated to respond.  See S.S. & M.S. o/b/o H.S. v. Hillsborough Twp. Pub. Sch. Dist., 73 I.D.E.L.R. 210, 119 LRP 2568, No. 3:18-cv-2335 (D.N.J. January 31, 2019).  The federal district court held that special education parents are not entitled to request an IEE at public expense when the District has not yet completed an evaluation or reevaluation of the student with which the parent disagrees, or where the parents refuse to allow the school district to evaluate the child.  Further, the court held that, “when an IEE request is invalid, a school district is not required to file for due process within twenty days.”

On December 13, 2019, the Third Circuit affirmed, stating:  “We agree that a disputed evaluation is a requirement for a publicly funded IEE.”  The circuit court held:  “Simply stated, only a disputed public evaluation can trigger a right for a publicly funded IEE.”  Distinguishing prior case law, the court held that:  “Neither our prior decision, nor, more importantly, the text of the statute, can be read to permit reimbursement without ever disagreeing with the prior evaluation.”  The Third Circuit also affirmed that school districts need not needlessly expend legal fees by filing for due process, as N.J.A.C. 6A:14-2.5(c) only requires a school district to file for due process within 20 days of a written request for an IEE when the parent has a disagreement with a public evaluation conducted by the district. 

The decision provides much needed guidance to school districts, parents, and ALJs on these important issues by clarifying that the federal and state regulations on IEEs should be interpreted as written to require a disagreement with a district’s evaluation before a parent may validly request an IEE at public expense.  In doing so, the decision should help alleviate a long-standing loophole in the regulatory scheme, through which parents had previously been able to force school districts into the untenable position of having to either grant IEEs to parents who had no right to request them, expend fees by filing for due process to deny the IEE request, or risk an adverse result from an ALJ who might otherwise have simply determined that the parents were entitled to request IEEs at any time, even in cases where the district was never given the opportunity to evaluate the child.

By: Cameron R. Morgan, Esq. and Nicole Crincoli, Law Clerk

The Individuals with Disabilities Education Act (“IDEA”) requires informed parental consent to be provided prior to a child study team performing any number of different actions in the course of the special education process.  Whether a school district needs to obtain written parental consent prior to administering postsecondary transition assessments had been a question of some debate.  In a recent guidance letter from the Office of Special Education Programs (“OSEP”), Letter to Olex, 119 L.R.P. 8445, 74 I.D.E.L.R. 22 (Feb. 22, 2019), OSEP indicated that individualized education program (“IEP”) teams generally do not need a greenlight from a parent before assessing a student’s postsecondary transition needs.

Under federal and state regulations, beginning with the IEP in place for the school year in which a special education student turns 16, the IEP team will focus its discussion to include planning for needed post-secondary transition services.  34 C.F.R. 300.320(b); N.J.A.C. 6A:14-3.7(e)12.  The IEP must begin to include: (1) appropriate measurable postsecondary goals based on age appropriate transition assessments related to training, education, employment, and where appropriate, independent living skills; and (2) the transition services, including courses of study, needed to assist the child in reaching those goals.  Ibid.

The IDEA requires that a district obtain informed, written parental consent before conducting an assessment as part of an initial evaluation or reevaluation for special education and related services.  34 C.F.R. 300.000.  In order to be informed, the consent must be: (1) given in the parent’s native language, or another mode of communication; (2) the parent must understand and agree in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records that will be released and to whom; and (3) the parent understands that the granting of consent is voluntary on the part of the parent and the parent can revoke that consent at any time.  34 C.F.R. 300.9. 

In Letter to Olex, the assessment at issue was a competency-based transition assessment being administered to all transition-aged students on a yearly basis, in order to develop postsecondary goals.  In its interpretation, OSEP observed the language and requirements of the IDEA in the context of these informal post-secondary assessments, which are conducted not as part of an initial evaluation or reevaluation, but simply to carry out the regulatory directive to assess post-secondary transition services for the IEPs of students approaching the last several years of secondary schooling. 

OSEP has now advised that postsecondary transition assessments are not considered evaluations or reevaluations requiring formal written, informed consent from the parent.  The term “evaluation,” as defined under IDEA, means procedures used in accordance with 34 C.F.R. 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.  In Letter to Olex, OSEP wrote:

[W]e believe that generally, parental consent is not required prior to conducting an age appropriate transition assessment because the purpose of the assessment is to develop appropriate postsecondary IEP goals and not to determine whether a child has or continues to have a disability, and the nature and extent of the special education and related services that the child needs.

OSEP added that, if the IEP team determines that a reevaluation is warranted in order to obtain additional data based on the student’s educational or related service needs, then the school district would be required to obtain written parental consent consistent with 34 C.F.R. § 300.300(c).  Yet, absent a need to conduct additional formal assessments, or absent one of the other circumstances for which informed consent is necessary under state and federal regulations, this guidance provides helpful clarification to child study teams who may be unsure whether the team is at liberty to informally assess post-secondary goals and services without first obtaining written parental consent to do so.

When boards of education resolve disputes with parents of special education students, they often enter into settlement agreements with the parents which are approved by an Administrative Law Judge (“ALJ”) of the New Jersey Office of Administrative Law (“OAL”). On February 27, 2019, the New Jersey Appellate Division in L.A. v. South Orange-Maplewood Board of Education issued a decision affirming that parties to a settlement agreement approved by the OAL are subject to a six-year statute of limitations to enforce that agreement.

In 2000, the parent of a special education student initiated litigation against the South Orange-Maplewood Board of Education (“Board”) seeking reimbursement for her son’s education and transportation costs. In 2002, the parent and Board resolved the dispute by way of a settlement agreement, which was approved by an ALJ of the OAL. The ALJ questioned the parent regarding her understanding of the agreement and concluded that the parent accepted the terms of the agreement voluntarily. Shortly after both parties approved the agreement, the parent sought to set aside the settlement agreement. The ALJ denied the parent’s request and ordered the parties to comply with the agreement.

In 2016, the parent filed a complaint in the Superior Court of New Jersey alleging that the Board failed to make required payments in 2003 and 2008 under the settlement agreement. The Board filed a motion to dismiss the complaint arguing that the parent’s claims were barred by a six-year statute of limitations governing contract actions. The trial judge agreed with the Board and dismissed the parent’s complaint.

In her appeal before the Appellate Division, she asserted that the statute of limitations is twenty years, not six years, pursuant to N.J.S.A. 2A:14-5, which governs enforcement of a judgment entered by a court. The Appellate Division summarily rejected the parent’s argument, reasoning that the OAL is not a “court” within the State’s judicial branch of government since it is overseen by the Department of State as part of the executive branch. According to the Appellate Division, since the OAL is not a court, N.J.S.A. 2A:14-5 governing judgments by a court does not apply. Furthermore, the Appellate Division determined the ALJ or the OAL did not issue a judgment.

For these reasons, the Appellate Division agreed with the Board that the settlement agreement between the parties is a contract subject to a six-year statute of limitations and upheld the dismissal of the parent’s case.

Parents of special education students have the right to request an independent educational evaluation (“IEE”) at the expense of the school district if they disagree with any assessment conducted as part of an initial evaluation or a reevaluation conducted by the school district. However, that right is not unfettered. On January 31, 2019, the United States District Court for the District of New Jersey in S.S. and M.S., o/b/o H.S. v. Hillsborough Township Public School District overturned an Administrative Law Judge’s decision and determined (1) parents are only entitled to an IEE at the district’s expense when they disagree with an evaluation or reevaluation that has been completed and (2) parents are not entitled to an IEE if they refuse consent to an evaluation or reevaluation by the district.

In 2011, the Hillsborough Township Public School District (“District”) conducted various assessments of the student as part of a triennial reevaluation, which included social, educational, and psychological evaluations. In 2014, the District determined that no additional information was required to determine the student’s eligibility for special education benefits. The parents did not request additional assessments until June 2017, approximately two and a half years after the last reevaluation planning meeting.

In June 2017, the District and parents participated in a reevaluation planning meeting, at which time the District agreed to conduct various assessments, including psychological and educational evaluations, of the student. The parents provided written consent allowing the District to complete the assessments. The next day, the parents requested an IEE and neuropsychological assessment at the District’s expense. Ultimately, the parties met to discuss the parents’ request, at which time the District did not agree to conduct the neuropsychological assessment and the parents revoked their consent for the psychological and educational assessments that they had previously agreed the District could conduct.

The parents filed suit challenging the district’s denial of the IEE request. In ruling in favor of the District, the District Court found that at the time the parents made the request for an IEE, the District had not completed an evaluation of the student. Therefore, there was no evaluation or reevaluation with which the parents could disagree. Accordingly, the parents were not entitled to an IEE at the District’s expense. Moreover, the District Court ruled that the parents had no right to a publicly funded IEE when they revoked and refused consent for the District to complete an evaluation of the student, thereby making it impossible for the District to assess the student.

In the realm of New Jersey special education, it is not a rare occurrence for parents to request an independent educational evaluation (“IEE”) of a special education student at public expense in response to an evaluation of the student conducted by the child study team.  Each year, New Jersey school districts are faced with hundreds of requests for IEEs at public expense.  The vast majority of these are granted voluntarily by the district, sometimes on the basis of a cost-benefit assessment that has little to do with whether the evaluation was appropriately conducted or whether the IEE will shed any new light on the child’s educational needs.  The reason is simple.  If a district decides to dispute the parent’s request for an IEE at public expense, it must file for due process to defend its own evaluation.  Yet, a recent decision of the Seventh Circuit Court of Appeals, B.G. by J.A.G. v. Board of Education of City of Chicago, 901 F.3d 903 (7th Cir. 2018), highlights the fact that, when school districts determine to defend their own evaluations, rather than acquiescing to pay for an IEE, courts may well find that the district’s own evaluation was properly conducted, and the parents are not truly entitled to have the IEE funded at public expense – even where minor flaws were present in the evaluation conducted by the school district.

Under the federal regulations of the Individuals with Disabilities Education Act (“IDEA”), a parent is entitled to an IEE at public expense “if the parent disagrees with an evaluation obtained by the public agency,” unless the school district requests a due process hearing “to show that its evaluation is appropriate.”  34 C.F.R. 300.502(b).  In New Jersey, if a parent makes a written request for an IEE “[u]pon completion of an initial evaluation or reevaluation” provided by the school district, the district must provide the IEE at no cost to the parent, unless it files for due process within 20 calendar days to show the appropriateness of its own evaluation with which the parent disagrees.  N.J.A.C. 6A:14-2.5(c).  Parents are entitled to only one IEE each time the school district performs an evaluation with which they disagree, although the request for an IEE can include requests for multiple different types of assessments, so long as only one such request is made in response to the district evaluation or reevaluation.

In B.G., the Seventh Circuit provided parties to special education disputes with a reminder of two important principles:  (1) federal courts reviewing IEE cases will often defer to the initial findings and credibility determinations of state hearing officers, and (2) properly conducted school district evaluations will generally not be found inappropriate, so long as they are based on valid testing and conducted in compliance with the requirements of 34 C.F.R. 300.304 and 300.305, even despite minor flaws in the evaluations.  In B.G., the parent of a 14-year old boy with a specific learning disability, who also had significant behavioral and attendance issues, requested a number of IEEs in response to a reevaluation of the student completed by the school district.  The child study team had continued the student’s classification under the category of “emotionally disturbed,” and developed and revised an IEP for the student, based, in part, on the results of its reevaluations.

The parent requested IEEs and raised challenges to the reevaluations completed by the school district, based on a number of alleged flaws in the assessments.  The parent criticized elements of the psychological assessment completed by two school psychologists, one of whom had administered intelligence testing and behavioral testing before going on maternity leave and leaving the other to interpret the data and finish the report.  The second psychologist was unable to administer certain additional academic testing or complete an interview with the student, due to the student’s lack of cooperation.  Among various other contentions, the parent argued that the psychological evaluation was inappropriate because the evaluators offered only minimal Spanish translation during the course of the testing, failed to explain certain scores in the behavioral testing scales, and failed to consider one behavioral assessment administered by a former special education teacher of the student.  However, the court affirmed the state hearing officer’s decision to credit the testimony of the district’s evaluators that these minor errors did not invalidate the results of the assessments – a conclusion with which even the parent’s expert was unwilling to disagree.

The case offered a window into how courts and hearing officers are likely to parse any number of potential objections to valid testing performed by a school district’s evaluators.  For example, the parent also claimed that the psychological evaluation improperly ignored that the student could potentially have had Attention Deficit Hyperactivity Disorder (“ADHD”).  The Circuit Court rejected this rationale, stating:  “ADHD is a medical diagnosis not within the area of expertise of the evaluators (or the hearing officer).”  After observing that an earlier district evaluation had indicated the presence of ADHD symptoms, the court noted that “B.G.’s mother then had five years to follow up on the potential of ADHD, but she failed to do so.”  The court went on:  “Without a diagnosis, there was nothing the District’s psychologists could have done differently.  They were not obliged to make a medical diagnosis during their evaluation of B.G.”  At another point, the parent argued that the evaluators improperly failed to make certain recommendations in their report, such a recommending a multi-sensory program or specifying the duration of instruction.  Again, the Circuit Court rejected these arguments, finding that “it was the IEP team, not [the evaluator] herself, whose job it was to create educational goals” for the student.

The B.G. case provides an example of extended analysis on an issue that is relatively rare in New Jersey special education practice.  The court’s analysis reinforces that these cases are generally fact-sensitive in the first instance.  Substantial deference is likely to be given to the initial findings of state hearing officers, such as administrative law judges (“ALJs”), especially where the ALJ finds that the District’s evaluator has testified credibly and that the testing was administered appropriately, even if not flawlessly.  Each case will be fact-specific in regards to the magnitude of any potential flaws in testing and its potential to invalidate the overall assessment results.  Yet, when well-qualified district personnel are able to credibly testify that the assessment was performed appropriately and the results are valid, reviewing courts are likely to defer to an ALJ’s finding that the district’s evaluation was appropriate and uphold denial of an IEE at public expense.

A major concern for school districts in special education cases is the potential for parents to recover attorney’s fees if they are considered prevailing parties under the Individuals with Disabilities Education Act (“IDEA”). School districts may limit exposure by extending a “ten-day offer” in which it makes an offer of settlement to the parents at least ten days before an administrative due process hearing. If the parent rejects the ten-day offer, the parent may only recover attorney’s fees for work done after the time of the offer if (1) the hearing leads to more favorable relief than the offer included, or (2) the parent was substantially justified in rejecting the offer. On May 14, 2018, the Third Circuit Court of Appeals in Rena C. v. Colonial School District, held that a school district’s ten-day offer which did not include attorney’s fees substantially justified a parent in rejecting the offer.

This case involved parents who sued a Pennsylvania school district under the IDEA regarding their child’s special education placement. The parents initiated a due process petition seeking “reimbursement for private tuition and associated costs (tuition reimbursement)” for two school years. During the course of litigation and more than ten-days before the due process hearing, the school district offered “to pay private school tuition and transportation” for the private placement sought by the parents. The parents never responded to the offer. The administrative hearing officer found in favor of the parents and ordered the school district provide tuition, one-on-one instructional support, transportation reimbursement, and stay-put at this placement.

Even though the hearing officer’s decision did not grant the parents more relief than what the school district offered in its ten-day offer, the parents argued that they were substantially justified in rejecting the offer because the offer did not include attorney’s fees. The IDEA does not address whether a ten-day offer must include attorney’s fees. However, the Third Circuit agreed with the parents and held that “a ten-day offer that affords no attorney’s fees provides a parent with substantial justification to reject the offer when the school district could not rationally believe that attorney’s fees had not accrued.” The Third Circuit reasoned that without the ability to reject such an offer, parents would be forced to choose between resolving a placement dispute and paying for an attorney.

Unfortunately, the Third Circuit did not explain what would constitute a rational belief that attorney’s fees had been accrued. The only guidance provided is that school districts attempting to settle an IDEA case in which the parents are represented by an attorney “should acknowledge that the parent has accrued attorney’s fees and should clearly state if its offer includes the payment of any fees.”

The New Jersey regulations under N.J.A.C. 6A:14-2.5(c) address the rights of a parent of a special education student to an independent educational evaluation (“IEE”) at the school district’s expense. A decision issued by a New Jersey Administrative Law Judge (“ALJ”) on January 9, 2018 in S.S. and M.S. o/b/o H.S. v. Hillsborough Township Public School District highlights the importance of complying with procedural requirements if a school district wishes to deny a parent’s request for an IEE.

On June 6, 2017, the parents in this case requested an IEE performed at the Hillsborough Township Public School District’s (“District”) expense. The District notified the parents on July 27, 2017 that it was denying the request. The District never filed for due process. Meanwhile, the parents obtained the evaluation at their own expense. Thereafter, on September 5, 2017, the parents filed for due process seeking reimbursement from the District for the cost of the evaluation.

N.J.A.C. 6A:14-2.5(c) requires school districts to either agree to a parent’s request for an IEE or file for due process within 20 calendar days of the parent’s request if the school district seeks to deny the request. If the school district denies the IEE request, it must demonstrate why the parent is not entitled to the IEE at the due process hearing.

In this case, the ALJ automatically granted the parents’ request for an IEE because the District failed to file for due process. The ALJ followed a series of previous decisions issued by other New Jersey ALJs who have strictly interpreted the 20 day deadline for a school district to file for due process. In essence, an ALJ is unlikely to side with a school district if it never files for due process or files untimely, even if it is late by one day. Moreover, an ALJ is unlikely to consider school holidays as a mitigating factor for a late filing.

For these reasons, school districts must be cognizant of the date when a parent makes a request for an IEE and be vigilant of the 20 day deadline to file for due process if it seeks to deny the IEE request.

In the last year, our federal courts have addressed the exhaustion of administrative remedies requirement for parents who bring claims against a school district on behalf of a disabled student under Section 504 of the Rehabilitation Act (“Section 504”). Notably, the U.S. Supreme Court ruled in February 2017 in Fry v. Napoleon Community Schools that parents are required to exhaust administrative remedies under the Individuals with Disabilities Education Act (“IDEA”) when the heart of their complaint alleges a denial of a free appropriate public education (“FAPE”). The Third Circuit Court of Appeals, which applies to New Jersey, recently applied the Fry standard on January 31, 2018 in S.D. v. Haddon Heights Board of Education, No. 15-1804, 2018 U.S. App. LEXIS 2384 (3d Cir. 2018).

In New Jersey, IDEA claims must first be filed with the State’s Office of Special Education Programs, and then the case is transmitted to the Office of Administrative Law for a due process hearing and disposition. A parent who disagrees with the Administrative Law Judge’s decision may then file an appeal in federal court.

In this case, the parents of a disabled student sued the Haddon Heights Board of Education (“Board”) directly in U.S. District Court alleging that the Board unlawfully discriminated against him in violation of Section 504 and the Americans with Disabilities Act (“ADA”). The parents did not explicitly allege any IDEA violations. However, the parents alleged that the Section 504 plans offered to the student by the Board failed to properly accommodate his disability and failed to provide him with certain services which precluded him from enjoying the benefits of the educational program to the same extent as his non-disabled peers.

In September 2016, the Third Circuit Court upheld the U.S. District’s Court’s decision to dismiss the parents’ claims for failure to exhaust administrative remedies under the IDEA reasoning that the parents’ claims fell within the scope contemplated by the IDEA. In light of the Fry decision issued in February 2017, the Third Circuit revisited the case under the standard set forth by the U.S. Supreme Court – that is, whether the alleged claims touch upon a FAPE, and if so, such claims must first be adjudicated through the administrative process.

In its recent decision, the Third Circuit, in applying the Fry standard, again upheld the dismissal of the parents’ claims for failure to exhaust administrative remedies. The Third Circuit reasoned that the parents’ alleged educational harm, by way of educational regression, due to deficient Section 504 plans, which was an issue of FAPE at the center of case. Such a claim was not one that a student could bring against another public facility that was not a school or that a nonstudent could initiate for alleged wrongs in a school setting. In short, the Third Circuit concluded that the heart of the complaint was whether the Board provided the student with a FAPE, which triggers the exhaustion requirements under the IDEA.