Enforcement and Appeal (If Necessary)
Appeal
Any party that feels the final decision of the hearing officer / ALJ is incorrect, “shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.” 20 U.S.C. 1415(i)(2)(A). So the party losing the due process case, may automatically appeal to either State court (Superior Court of New Jersey) or federal court (U.S. District Court for the District of New Jersey).
The party that wishes to appeal has 90 days from the date of the final decision to file the appeal. 20 U.S.C. 1415(i)(2)(B). New Jersey uses the same deadline. N.J.A.C. 6A:14-2.7(v).
If an appeal is made, “the court (i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. 1415(i)(2)(C). If you, the parents prevail in the appeal, the court may award reasonable attorney’s fees and costs to be reimbursed to you. 20 U.S.C. 1415(i)(3)(B)(i)(I). If the school district and/or State prevails, either may only be reimbursed attorney’s fees and costs if your case is “frivolous, unreasonable, or without foundation” or “was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” 20 U.S.C. 1415(i)(3)(B)(i)(II) and (III).
Enforcement of a Favorable Decision or Settlement
“If either party fails to comply with any provision of a final decision in a due process hearing, either party may seek enforcement of the decision in a court of appropriate jurisdiction.” Alternatively, if the school district responsible for implementing a hearing decision with respect to the student’s program or services, the parent or the parent’s attorney can request enforcement by the OSE no later than 90 calendar days from the date that the action should have occurred. The school district shall have an opportunity to respond and, if appropriate, seek to resolve the request with the parent. If it is determined that the school district has failed to implement the decision or part of the decision, the OSE shall order the school district to fix the issue. N.J.A.C. 6A:14-2.7(t).
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