Step 5 – Hearing Rights

Preparing For the Hearing

Every State and school district that receives federal money from the U.S. Department of Education under IDEA is required “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.” 20 U.S.C. 1415(a). These are your legal rights and to prepare for the hearing you should learn and know these rights.

Adjournment

At any time, a party may request an adjournment of the hearing, which can be granted or denied by the hearing officer / ALJ. “A hearing or reviewing officer may grant specific extensions of time beyond the [required timeline] at the request of either party.” 34 C.F.R. 300.515(c); see 45 Day Rule below. *NOTE: The request must be made by a party and the adjournment must be for a specific amount of time. An ALJ may not grant an adjournment because of his/her own schedule.

This issue was part of the companion C.P. Class Action and settlement resulted in a Consent Order on adjournments. Visit the C.P. Class Action website https://nj45dayclassaction.com for more information. You can download the approved new adjournment form here.

Hearing Officer Qualifications

In New Jersey, “a due process hearing is an administrative hearing conducted by an administrative law judge,” also known as an “ALJ”. N.J.A.C. 6A:14-2.7(a). (*NOTE: IDEA calls them “hearing officers”. See 20 U.S.C. 1415(f)(3)(A).)

At a minimum, a hearing officer / ALJ must:

  • not be an employee of the State DOE (NJDOE) or the school district;
  • not have a professional or personal conflict of interest;
  • understand and be trained on IDEA and related special education laws;
  • know how to conduct hearings; and
  • know how to write legal decisions/orders.

20 U.S.C. 1415(f)(3)(A).

“Discovery”

“Discovery” is a term used in regular court proceedings. They are formal methods to develop evidence and testimony. Those methods do not apply to special education due process proceedings. Gathering information to prepare for the hearing includes the access to student records, see Request your child’s school records in Part 2, and informal exchange of information. “Discovery shall, to the greatest extent possible, consist of the informal exchange of questions and answers and other information. Discovery may not include requests for formal interrogatories, formal admissions or depositions.” N.J.A.C. 1:6A-10.1(d). This should be completed at least five (5) days before the hearing. N.J.A.C. 1:6A-10.1(a).

Five-Day Exchange Rule

Each party must turn over to the other side a list of documents, evaluations, other evidence, and witnesses with their anticipated testimony at least five (5) business days before the scheduled hearing date. 20 U.S.C. 1415(f)(2)(A). “Each party shall disclose to the other party any documentary evidence and summaries of testimony intended to be introduced at the hearing.” N.J.A.C. 1:6A-10.1(b).

Failure to make this exchange will prevent the violating party from presenting evidence at the hearing. “A hearing officer may bar any party that fails to comply with [this exchange] from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.” 20 U.S.C. 1415(f)(2)(B). The New Jersey rule is even stronger. “Upon application of a party, the judge shall exclude any evidence at hearing that has not been disclosed to that party at least five business days before the hearing, unless the judge determines that the evidence could not reasonably have been disclosed within that time.” N.J.A.C. 1:6A-10.1(c).

Other Hearing Rights

  • “To the greatest extent possible, the hearing shall be conducted at a time and place convenient to the parent(s) or guardian.” N.J.A.C. 1:6A-14.1(a).
  • Parties to a due process case may be represented by counsel and be accompanied “by individuals with special knowledge or training with respect to the problems of children with disabilities.” 34 C.F.R. 300.512(a)(1).
  • In New Jersey, a non-lawyer may represent a party if he/she complies with the application process set forth in 1:1-5.4 and shall be bound by the procedures, limitations and requirements contained in 1:1-5.5.” N.J.A.C. 1:6A-5.1(b).
  • Parties may present evidence and confront, cross-examine, and compel the attendance of witnesses via subpoenas. 34 C.F.R. 300.512(a)(2).
  • Parents that have obtained an independent evaluation of their child may present it as evidence at a hearing without requiring the evaluator to attend the hearing. 34 C.F.R. 300.502(c)(2).
  • Parents have the right to “have the child who is the subject of the hearing present.” 34 C.F.R. 300.512(c)(1).
  • Parents may open the hearing to the public. 34 C.F.R. 300.512(c)(2).
  • If the parents are not native English speakers, NJDOE will “provide an interpreter at the hearing or written translation of the hearing, or both, at no cost to the parent(s) or guardian.” N.J.A.C. 1:6A-14.3.
  • Parents have the right to receive a typed or digital transcript of the proceedings for free. 34 C.F.R. 300.512(c)(3).
  • Parties have the right to receive a typed or digital findings of fact and decisions/orders. 34 C.F.R. 300.512(a)(5).

Putting On Your Case / Content of the Hearing

“The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the [due process complaint], unless the other party agrees otherwise.” 20 U.S.C. 1415(f)(3)(B). So, you can only present evidence relating to the problem in your complaint.

In New Jersey, school districts go first in the hearing and they have the burden of proof and production. N.J.S.A. 18A:46-1.1. That means that the school district must prove their case, for example prove it has provided a FAPE to your child or that the proposed IEP is appropriate for your child.

The ALJ may permit opening statements by the parties which is simply a brief explanation of the evidence each side intends to present and what it proves. Then each side presents its evidence – documents or witness testimony – with the school district going first. When the evidence is done, you can present “closing arguments” which is persuasive speech on how the evidence proves you should win. Once complete, the ALJ will declare that “the record is closed.”

No Post-Hearing Briefs

Although not a specific rule or law, generally hearing officers / ALJs should not permit briefs to be submitted once the hearing is over because parents not represented by attorneys typically do not know how to prepare a legal brief. Formerly, this was stated in the transmittal letter, but it is no longer. However, in New Jersey, the ALJs regularly request the parties to present briefs. This is before the Court in this class action.

Final Decision / 45 Day Rule

Decisions by the ALJ may be made on either ‘substantive’ or ‘procedural’ grounds. “The judge’s decision shall be based on the preponderance of the credible evidence, and the proposed action of the board of education or public agency shall not be accorded any presumption of correctness.” N.J.A.C. 1:6A-14.1(d).

“A decision made by a hearing officer shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education.” 20 U.S.C. 1415(f)(3)(E)(i). In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies— (I) impeded the child’s right to a free appropriate public education; (II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. 1415(f)(3)(E)(ii).

A decision by a hearing officer / ALJ is final, but may be appealed. 20 U.S.C. 1415(i)(1). That decision must be issued within forty-five (45) days following the end of the Resolution Period, unless there is an adjournment (and then 45 days from the end of the adjournment), and then sent to the parties. 34 C.F.R. 300.515(a). This is known as the 45 Day Rule and is the subject of the companion class action case C.P., et al. v. New Jersey Department of Education. More information about the settlement and Consent Order entered in that case is available on https://nj45dayclassaction.com/.

You may need to enforce of the Decision or settlement, if one was reached, or appeal if the decision went against you.