The next section of the settlement agreement deals with “Pleading” and “Motions”. These are legal terms, but what they mean are documents that a party can (or cannot) file with the NJDOE or the OAL. These provisions arose because lawyers were treating special education cases as regular trial cases when they are not and filing documents and motions that are really not allowed. Due process cases are meant to be simple hearings. So we tried to clear that up for everyone in this section.
Relief #5 – Paragraph 8
“The only relief that may be filed without first obtaining leave from the ALJ assigned to the case is one of the following five types:
A. A sufficiency challenge under 20 U.S.C. § 1415(c)(2)(A); 35 C.F.R. § 300.508(d); N.J.A.C. § 6A:14-2.7(f).
B. An amended complaint notice under 20 U.S.C. § 1415(c)(2)(E).
C. A motion to bar evidence under 20 U.S.C. § 1415(f)(2)(B) and N.J.A.C. §1:6A-10.1.
D. An application for emergency relief under N.J.A.C. § 1:6A-12.1(a).
E. A motion for an independent educational evaluation under N.J.A.C. § 1:6A-14.4.”
What does that mean?
A “pleading” in special education cases is the due process complaint and the answer to that complaint. A “motion” is a request by a party to the ALJ to do something that impacts the hearing. IDEA provides for only five (5) situations where a party can file some type of pleading or motion before a hearing without asking permission of the ALJ. Those five are:
- A sufficiency challenge 20 U.S.C. 1415(c)(2)(A) – When a party files a due process complaint, he/she only need to state four things: (1) the name of the child, the address of the residence of the child and the name of the school the child is attending; (2) in the case of a homeless child available contact information; (3) a description of the nature of the problem of the child relating to such proposed initiation or change, including facts relating to such problem; and (4) a proposed resolution of the problem to the extent known and available to the party at the time. If the party hasn’t included those four things, the other party can file a challenge that the complaint is “insufficient”. The complaint and the challenge is sent to an ALJ to determine if it is sufficient or not.
- An amended due process complaint 20 U.S.C. 1415(c)(2)(E) – If you want to add or change something in your due process complaint, you need to “amend” it. But you can only do this if (1) the other side consents to it and is given another opportunity to resolve it; or (2) the ALJ gives you permission to amend it more than five (5) days before the hearing.
- A motion to bar evidence 20 U.S.C. 1415(f)(2)(B) – The ‘Five Day Exchange Rule’ requires each party to submit the documents and list of witnesses that they will present at the hearing to the other party at least five (5) business days before the hearing. If a party fails to comply with that rule, the other party may file a motion to disallow that other side from presenting any evidence.
- An application for emergent relief N.J.A.C. 1:6A-12.1 – This motion is a request to the ALJ to stop a party from doing something that would cause permanent harm. There are four types of “emergent relief”: (1) keeping a school district from stopping services; (2) stopping disciplinary action when there has been no manifestation determination or alternate education settings made; (3) keeping placement while the due process case is pending aka “Stay Put”; and (4) preventing a school from graduating a child.
- A motion for an Independent Educational Evaluation (IEE) N.J.A.C. 1:6A-14.4 – If a party or an ALJ believes he/she would have a better understanding of the case by an evaluation of the child, a party (or the ALJ on his/her own) can request that an IEE be performed in an area of question. There must be good cause, for example the child hasn’t been evaluated in more than three years, for such motion to be granted. If it is granted, the IEE must be conducted by a licensed professional and the ALJ may adjourn the hearing to allow time for the IEE to be completed.
Relief #6 – Paragraph 9
“Of the above five (5) types, none need be filed in a formal fashion beyond what the regulations describe. For all other motions, the party wishing to make a motion must first request a conference call with the ALJ assigned to the case.”
What does that mean?
The paragraph simply states that any of the five types of requests discussed above does not have to be in a formal document. But if a party wants to make any other type of motion not listed in those five, they must bring it to the ALJ’s attention first by requesting a conference call through the ALJ’s assistant.
Relief #7 – Paragraph 10
“No other motions may be filed unless prior approval from the ALJ is obtained.”
What does that mean?
This paragraph follows on the prior two and states that without permission of the ALJ all other motions are not allowed. Common motions that may not be filed without a conference call with the ALJ are motions to dismiss, motions for summary decision, and motions to strike allegations.
Relief #8 – Paragraph 11
“Before the parties convene an ALJ-led mediation conference in a parent-filed case, the assigned ALJ Mediator shall determine whether the LEA has sent prior written notice to the parents or a response to the complaint. 20 U.S.C. § 1415(c)(2)(B); 34 C.F.R. § 300.503(a); N.J.A.C. §§ 6A:14-2.7(d) and (e). If the LEA has failed to do so, the DOE shall instruct the LEA to file such response before the scheduled mediation conference. If the parties agree in writing to waive the resolution meeting, the case is transmitted to the OAL, or a parent in a districtfiled case has not filed a response to the complaint, the ALJ assigned to hear the case shall notify the non-complaining party to do so during the initial pre-hearing conference (see ¶15 below).”
What does that mean?
When a party to a case has not filed an answer to the due process complaint, the ALJ involved in the mediation or assigned to hear the case shall notify the non-responding party that it must file an answer to better understand what is in dispute. That answer must be done either before the scheduled mediation or shortly after the initial pre-hearing conference.