A Capehart Scatchard Blog

ALJ Grants IEE Due to District’s Failure to File for Due Process

The New Jersey regulations under N.J.A.C. 6A:14-2.5(c) address the rights of a parent of a special education student to an independent educational evaluation (“IEE”) at the school district’s expense. A decision issued by a New Jersey Administrative Law Judge (“ALJ”) on January 9, 2018 in S.S. and M.S. o/b/o H.S. v. Hillsborough Township Public School District highlights the importance of complying with procedural requirements if a school district wishes to deny a parent’s request for an IEE.

On June 6, 2017, the parents in this case requested an IEE performed at the Hillsborough Township Public School District’s (“District”) expense. The District notified the parents on July 27, 2017 that it was denying the request. The District never filed for due process. Meanwhile, the parents obtained the evaluation at their own expense. Thereafter, on September 5, 2017, the parents filed for due process seeking reimbursement from the District for the cost of the evaluation.

N.J.A.C. 6A:14-2.5(c) requires school districts to either agree to a parent’s request for an IEE or file for due process within 20 calendar days of the parent’s request if the school district seeks to deny the request. If the school district denies the IEE request, it must demonstrate why the parent is not entitled to the IEE at the due process hearing.

In this case, the ALJ automatically granted the parents’ request for an IEE because the District failed to file for due process. The ALJ followed a series of previous decisions issued by other New Jersey ALJs who have strictly interpreted the 20 day deadline for a school district to file for due process. In essence, an ALJ is unlikely to side with a school district if it never files for due process or files untimely, even if it is late by one day. Moreover, an ALJ is unlikely to consider school holidays as a mitigating factor for a late filing.

For these reasons, school districts must be cognizant of the date when a parent makes a request for an IEE and be vigilant of the 20 day deadline to file for due process if it seeks to deny the IEE request.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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