Article by Capehart Scatchard

by Robert A. Muccilli, Esq.

On November 5, 2001, the New Jersey Department of Education proposed an amendment to N.J.A.C. 6 A:14-2.7(b) which removes from a school district responsible for development of a student’s individualized education program (“IEP”) the option of requesting a due process hearing when the district is unable to obtain parental consent to implement an initial IEP. The Department indicates that this change is necessary to conform to the new interpretation of the United States Department of Education (“USDOE”) that USDOE special education rules only permit a school district to use due process procedures when a parent refuses to consent to an initial evaluation or a re-evaluation.

This is a remarkable development for several reasons. First, there are sections of the USDOE regulations that clearly permit either a parent or a school district to initiate a request for a hearing on a broad range of matters which include a proposal to initiate program and placement. Second, in the absence of a parent resorting to due process procedures, the student will not be able to receive special education and related services under the Individuals With Disabilities Education Act (“IDEA”), a result that is contrary to the primary purpose of the law. The third reason is that taking this option away from a school district could mean that the district will remain exposed to a latent claim for failure to offer a free and appropriate public education in the least restrictive environment to educationally disabled students under the IDEA. In the absence of rules or statutes establishing clear limitations periods in New Jersey for requesting a due process hearing, such a claim may be initiated years later when memories have faded and witnesses may no longer be available to testify. For this reason, school districts should be skeptical about the Department’s statement that the rule amendment may result in a reduction in staff time and attorneys fees and costs associated with initiation of due process procedures to override a parent’s refusal to consent to initial implementation of an IEP.

If this change is promulgated, which we anticipate will occur given the USDOE interpretation, a school district that is unable to obtain parental consent to initial implementation of an IEP should consult legal counsel. Comments to the proposed rule change must be submitted to Gloria Hancock at the Department by January 4, 2002. Her address is River View Executive Plaza, Building 100, PO Box 500, Trenton, New Jersey 08625-0500.

This Legal Alert was prepared by Robert A. Muccilli, Esq. Mr. Muccilli is a Shareholder in Capehart Scatchard’s School Law, Labor and Employment, and Environmental Groups. For further information regarding the issues discussed in this Legal Alert, please contact Mr. Muccilli at 856.914.2074, by fax at 856.235.2786, or by email at rmuccilli@capehart.com.

© 2001 Capehart & Scatchard, P.A.