IN SETTLEMENT WITH ELC, NJDOE AGREES TO MAJOR REVISIONS IN HANDLING STATE SPECIAL EDUCATION COMPLAINTS

In response to a complaint filed by Education Law Center (ELC), the New Jersey Department of Education (NJDOE) agreed to make major revisions to the information it provides parents, the public, and Department complaint investigators about issues to be considered in state special education complaints and the remedies that may be granted. The revisions, required by a Mediation Agreement between the NJDOE and ELC, underscore the NJDOE’s “acknowledged obligation” to investigate and remedy not only procedural violations, but also substantive failures by school districts to offer appropriate services and placements to students with disabilities.

Departments of education in every state are required under the Individuals with Disabilities Education Act (IDEA) to investigate complaints by parents and others regarding any violation of special education law. These are known as “state complaints.” While disputes with school districts are often decided by administrative judges in a procedure called “due process,” state complaints offer an alternative, less costly option, and the scope of issues that can be addressed in a state complaint is broader.

“When it comes to state complaints, federal law obligates the NJDOE to investigate whether students are provided a free appropriate public education (FAPE) in the least restrictive environment (LRE) by evaluating whether school district determinations are reasonable and appropriate in light of an individual child’s abilities and needs,” said ELC Trustee Rebecca Spar, who was instrumental in preparation of ELC’s complaint. “The NJDOE must then provide remedies for past denials of FAPE that may include compensatory make-up services or reimbursement for educational services paid for by parents.”

Consistent with its federal obligation, and using language negotiated with ELC,¹ the NJDOE agreed to:

• Significantly revise the state complaint section of its Parental Rights in Special Education (PRISE) pamphlet, which is distributed at least once per year to parents of students with disabilities and heavily relied upon by those parents;
• Replace the online pamphlet describing the state complaint process;
• Create a chart comparing state complaints to requests for due process hearings, and include a link to this chart in PRISE and in the new pamphlet;
• Revise the manual used by complaint investigators to include detailed information on resolving complaints involving the appropriateness of a student’s educational program or services, provision of FAPE, and whether the student is educated in the LRE;
• Revise the form used to request complaint investigations;
• Translate all revised documents, with the exception of the internal manual for investigators, into Spanish, Arabic, Chinese, and Portuguese;
• Develop procedures for the enforcement of remedies arrived at through state complaints;
• Provide training to the NJDOE Complaint Investigation Coordinator and all complaint investigators on the substantive provisions of special education law and the availability of compensatory services and monetary reimbursement as remedies for denial of appropriate services to a child.

Perhaps most importantly, the NJDOE agreed to widely disseminate and publicize all of the revised documents (with the exception of the manual for complaint investigators) to a broad range of interested parties listed in the Mediation Agreement. The revised documents will be posted in full on the NJDOE’s website by June 1; translated versions are due by July 1; and notifications to the listed organizations are due to follow within two weeks of each deadline.

The History of New Jersey’s State Complaint Process

The NJDOE historically limited the issues it would consider when state complaints were filed. The Department addressed only “procedural” violations by school districts, such as the failure to include certain staff members at a meeting or to meet timing deadlines, or failures by a district to provide the services listed in a student’s Individualized Education Program (IEP), the written document entitling the student to certain services. The NJDOE skirted more complex issues of whether a student’s IEP, or the student’s placement in a certain program, actually provided the opportunity for meaningful progress required by federal law.

In 2012, the U.S. Department of Education found the NJDOE out of compliance with federal law for refusing to address complaints about the placement of students with disabilities. Despite a federal corrective action order, the NJDOE made minimal changes to its policies and practices for state complaints.

The pandemic, with its disastrous results for students with disabilities, led ELC to take a closer look at the NJDOE’s current approach to state complaints about the substance of a student’s educational program.

Continuing Violations and 2022 Complaint by ELC

What ELC found, after reviewing nearly two hundred complaint reports obtained through public records requests, was not encouraging. Attorney Cindy Fine, who combed through the reports, said, “I could not find a single complaint report where the Department discussed whether the IEP was appropriate for the child. As long as a district followed the correct procedures, like holding meetings on time, all was well, and the district was found compliant.”

ELC described its findings in a complaint alleging that the NJDOE continued to violate federal law ten years after the federal order by failing to address substantive violations of a child’s right to the appropriate education.

ELC Senior Attorney Elizabeth Athos, who worked for months with Ms. Spar and Ms. Fine to file the complaint and negotiate a resolution, considers the revisions to the NJDOE’s guidance documents a victory for New Jersey students with disabilities.

“The NJDOE is publicly committing to operating a state complaint system that addresses denials of FAPE,” Ms. Athos said. “While we believe the NJDOE intends to follow up its words with actions, ELC will monitor implementation of the agreement and future state complaint reports to make sure this happens. We ask any parents experiencing problems with state complaints to contact ELC.” 

Press Contact:

Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
skrengel@edlawcenter.org
973-624-1815, x 240

Press Contact:
Sharon Krengel
Director of Policy, Strategic Partnerships and Communications
skrengel@edlawcenter.org
973-624-1815, x240