Step 4 – 30 Day Resolution Period

Efforts to Settle the Case Before Hearing

Once the Due Process Complaint is filed, there is a 30 day period during which you and the school district can try to resolve the dispute before it is sent to a hearing officer (in New Jersey, an Administrative Law Judge or “ALJ”). The parties can have a resolution meeting, mediation, or waive both and go straight to hearing. The exception to this period occurs when the school district files the due process complaint and it is immediately assigned to an ALJ for hearing. N.J.A.C. 6A:14-2.7(h)(11).

The OSE Processes the Complaint

“When the Office [of Special Education] receives a request for a due process hearing, the matter shall be processed and, as appropriate, mediation and a due process hearing in accordance with this chapter will be made available to the parties.” N.J.A.C. 6A:14-2.7(g).

Resolution Meeting

Within 15 days of receipt of a parents’ due process complaint, the school district “shall convene a meeting with the parents and the relevant member or members of the IEP Team who have specific knowledge of the facts identified in the complaint” to try to resolve the case. 20 U.S.C. 1415(f)(1)(B)(i). The meeting must include a school district representative who has authority to resolve the dispute and may not include a lawyer for the school district unless the parent(s) brings a lawyer. 20 U.S.C. 1415(f)(1)(B)(i).

If the meeting results in resolution, it must be put in a legally-binding writing, signed by both the parent(s) and the school district representative, and “enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 U.S.C. 1415(f)(1)(B)(iii). If no agreement is reached within 30 days of receiving the complaint, the hearing may go forward and start the timelines of the due process hearing. 20 U.S.C. 1415(f)(1)(B)(ii); see Hearing Rights on timelines.

Mediation

Instead of a Resolution Meeting, another available option to try to settle the case is Mediation. The State or school district “shall ensure that procedures are established and implemented to allow parties to [special education] disputes (even before filing a due process complaint), to resolve such disputes through a mediation process.” 20 U.S.C. 1415(e)(1). Mediation is voluntary by the parties, may not be used to delay a hearing or parents’ rights, and is conducted by a trained mediator with costs paid by the State. 20 U.S.C. 1415(e)(2).

“Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding.” 20 U.S.C. 1415(e)(2)(G).

If settlement is reached during mediation, “the parties shall execute a legally binding agreement” in writing that sets forth that discussions during mediation shall remain confidential, is signed by both parent(s) and school district representative, and “is enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 U.S.C. 1415(e)(2)(F).

If mediation fails, the case is transferred to a hearing officer / ALJ for hearing. N.J.A.C. 6A:14-2.7(h)(8)(iii).

Waiver

The parties (parents and school district) can agree in writing to waive both a Resolution Meeting and Mediation and go straight to hearing. 20 U.S.C. 1415(f)(1)(B)(i).

Transmittal to OAL / ALJ

“If the [school district] has not resolved the complaint to the satisfaction of the parents within 30 days of the receipt of the complaint, the due process hearing may occur, and all of the applicable timelines for a due process hearing under this subchapter shall commence.” 20 U.S.C. 1415(f)(1)(B)(ii).

“The Office of Special Education Programs shall immediately transmit the matter to the Office of Administrative Law with the transmittal form. Copies of any motions or other documents shall be filed subsequently with the assigned judge.” N.J.A.C. 1:6A-9.1(b). The “transmittal form” notifies the parties that the case has been transferred to the OAL, provides the assigned OSE Agency Number and the name of the case (e.g. T.S. on behalf of R.S. v. Tiny Town Board of Education), and when and where the hearing is scheduled and the ALJ assigned to conduct the hearing. The form also provides some of the important rules on what to expect at the hearing. A sample transmittal form can be downloaded here.

10 Day Peremptory Hearing Date Rule

“Upon unsuccessful conclusion of the resolution process or mediation . . . the representative of the Office of Special Education [ ] shall immediately contact the Clerk of the Office of Administrative Law and the Clerk shall assign a peremptory hearing date. The hearing date shall, to the greatest extent possible, be convenient to all parties but shall be approximately 10 days from the date of the scheduling call.” N.J.A.C. 1:6A-9.1(a). “Peremptory” here means mandatory. Once that first hearing date is scheduled by OSE (approximately 10 days after attempts at settlement have failed), a hearing with witness testimony and documentary evidence must occur.

Continuing Efforts to Settle After Transmittal (NJ Regulation)

Just because a hearing has been scheduled, doesn’t mean the parties can’t continue to try to settle the case. In fact, the New Jersey regulations encourage that. “The scheduling of a hearing shall not preclude voluntary ongoing efforts by the parties to settle the matter before or at the hearing.” N.J.A.C. 1:6A-4.1(a). (Settlement discussions are by the parties, NOT the ALJ.) In fact, if you need more time and are making progress in settlement discussions, the parties can request an adjournment of the hearing. N.J.A.C. 1:6A-4.1(b); see also Adjournments in Hearing Rights.

When case gets transmitted to OAL, go to Step 5 to see your rights for the Hearing.