ENFORCING ADMINISTRATIVE LAW SPECIAL EDUCATION DECISIONS DURING THE APPEAL PROCESS

By Theodore A. Sussan, Esq.



"Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim."

Nicomachean Ethics, by Aristotle - 350 BC



All lawsuits are filed with some pursuit in mind. At some point, thankfully, the proceeding ends. This is considered to be a good thing by most practitioners, and it is certainly true in special education cases where a child’s future education is at stake. Occasionally, one or more parties decide that the litigation’s aim has not been fulfilled, and an appeal is filed. After a decision is rendered in a special education due process hearing, does an appeal act to stay the order, or is it enforceable and binding on the parties? The answer depends upon where you live. In special education cases enforceability of decisions during the pendency of an appeal presents interesting legal issues, especially as it relates to the concept of “stay put.” This article will review implementation of special education decisions during the appeal process.

THE LAW REQUIRES FAPE

A student's entitlement to a free, appropriate public education (FAPE) derives from the federal Individuals with Disabilities Education Act (IDEA), first enacted in 1975[1]. The federal law represents an ambitious undertaking to enable states to provide special education and related services to children between the ages of 3 and 21 who are deemed to be eligible for special education and related services.[2] The law requires that all children with disabilities have available to them a FAPE which emphasizes special education and related services designed to meet their unique needs.[3] The law is quite complex and implemented consistent with 34 C.F.R. Part 300. In June 1977, the State of New Jersey implemented the law which is today set forth in Chapter 14 of the special education New Jersey Administrative Code Title 6A, otherwise referred to as N.J.A.C. 6A:14-1.1 et seq.

In the great majority of instances parents and school districts are able to agree as to the child’s special education program. The program is then written into a document called an individualized education program (iep). The precise terms of the program are enumerated, including the nature of the education, goals and objectives, the related services that are deemed necessary, and the actual placement where the education will occur.[4] The plan is implemented with the hope and expectation that the child will be offered the FAPE which the law requires. When disagreements arise IDEA provides a mechanism for resolution.

DUE PROCESS PETITIONS HEARD BEFORE THE OFFICE OF ADMINISTRATIVE LAW

Special Education disputes between parents and school districts deal with issues that for the most part break down into the areas of classification, program, placement or related services. When a dispute cannot be resolved through either direct consultation or mediation,[5] either party may file a petition for due process.[6] A due process hearing in New Jersey is a contested action heard before the Office of Administrative Law by an administrative law judge. New Jersey is considered to be a one-tiered state in its due process procedure. That is, the decision of an administrative law is final, and no further review by a state agency is possible.[7] The decision, unlike most all other administrative law decisions, is not a recommended decision that the agency head can adopt, modify, or reject. Other states, such as Pennsylvania , utilize a two-tiered system wherein a hearing officer’s decision is reviewed by a state panel, which then becomes the final state pronouncement.

THE APPEAL

A due process hearing can continue for many days, and span several months or more. The trial concludes with a written decision. In most instances, as in most trial court proceedings, the case comes to an end and the decision is implemented. Final decisions in special education matters in New Jersey are appealable by filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in the District Court of the United States without regard to the amount in controversy. 20 U.S.C.A. § 1415(i)2 states that the court “shall receive the records of the administrative proceeding; hear additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate.” It should be noted that the appeal hearing is something “short of a de novo hearing” and the introduction of additional evidence is quite limited.[8]

The requirement that final decisions be fully implemented is a boilerplate phrase set forth in every special education decision. The standard language employed by the administrative law judge is:

This decision is final pursuant to 20 U.S.C.A. §1415(i)(A), and 34C.F.R.§ 300.510 (1999), and is appealable by filing a Complaint and bringing a civil action either in the Superior Court of New Jersey or in a District Court of the United States. 20 U.S.C.A. §1415(i)2; 34C.F.R.§ 300.512(1999). If either party feels that this decision is not being fully implemented, this concern should be communicated in writing to the Director, Office of Special Education Programs.



The administrative law judge does not generally retain jurisdiction once a final order has been entered. Enforcement of the decision reverts back to the agency head, which in special education matters is the New Jersey Department of Education.[9]

A special education appellant is never anxious to comply with an adverse decision. For example, the judge's order might require the school district to fund a private school placement, having determined that a disabled child was not offered a FAPE. In such instances it is common for the appellant to argue that the “stay put” provision of IDEA prevents implementation until all proceedings have been completed. This argument stems from the pendent placement requirement of the law, otherwise known as stay put.

STAY PUT

IDEA’s procedural safeguards are important in understanding the enforceability of final decisions. The stay put provision states that during the pendency of any proceedings conducted pursuant to the Act, the child shall remain in the then-current educational placement.[10] The purpose of this provision is to prevent the child's placement and program from being changed during the course of proceedings and to maintain the status quo. It was felt that some degree of continuity in the child's program and placement was more appropriate than having possible program changes occur at various levels in the appeal process. This section was also meant to prevent schools from exercising their traditional authority to exclude children from public schools.[11] In practical terms, this means that once a request for mediation or due process is filed, the last agreed to program and placement becomes the status quo placement for the duration of the proceedings. If a school district proposes to change a child’s program, the parents need to be given 15 days notice prior to any change. Upon the expiration of 15 days, the proposed change takes effect, unless mediation or due process is invoked, which automatically, by operation of law, brings stay put into effect.[12] Thus a timely request for mediation or due process can prevent a school district from changing the last agreed to program and placement. After 15 days, the school district’s proposed change is considered to be the last agreed to placement.

The pendent or stay put placement is considered to be that placement which was set forth in the last agreed to iep.[13] The Supreme Court in the often cited Burlington case noted that “We think at least one purpose of § 1415(e) (3) was to prevent school officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings.”[14] Most courts agree that this section of IDEA was meant to protect parents and their disabled children from unilateral change in placement by the public school. If IDEA, then, requires stay put through review proceedings, why doesn’t an appeal act to continue the status quo and stay operation of the order?

FINAL STATE DECISION IS THE PENDENT PLACEMENT DURING THE APPEAL PROCESS

Since special education cases can potentially be appealed through the Federal Court system to the United States Supreme Court by Writ of Certiorari, it has been argued that there can be no change in a child's program or placement until the very last court renders its decision on appeal. Since appellate procedure is, to say the least, time-consuming and lengthy, a child's placement, for better or for worse, could be frozen in time for many years. This would be especially tragic if the placement was inappropriate and determined to be so by various courts through the appeal process. For many parents, the high cost of unilaterally placing their child in a private school is prohibitive. The possibility of reimbursement is of no practical value if the child languishes in an inappropriate placement during protracted litigation. As one court noted, “The prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.[15] Courts have concluded that IDEA requires final state decisions to be considered the last agreed to iep, therefore representing the pendent or stay put placement during appeals. The finality of a state decision arises at different stages, depending on whether the state utilizes a one or two tiered system of due process.

The leading case in the Third Circuit dealing with stay put and the appeal process is Susquenita School District v. Raelee S.[16] This Pennsylvania case began when the parents filed a petition for due process seeking reimbursement for a private school placement that they had made. Pennsylvania is a two-tiered system state wherein a hearing officer issues a recommended decision which is then reviewed by a state appeals panel. In Susquenita the hearing officer ruled in favor of the school district, finding that a FAPE was offered to the child and therefore the parents were not entitled to reimbursement for their unilateral placement. The state appeals panel reversed, ruling that a FAPE was not offered, and that the parents acted properly. As a result, the hearing officer’s decision was reversed and parental reimbursement ordered. The school district then appealed to the federal district court, seeking a stay of the appeal panel’s decision. The district court judge denied the stay, resulting in an interlocutory appeal to the Third Circuit. The issue presented was whether or not the stay put provision of IDEA enabled the school district to withhold payment for the private school placement until the appeal process was exhausted?

The parent’s sought immediate implementation of the order. In other words, they wanted the school district to start paying for the private school. Their position derived from the specific language of §1415 (j) of the Act. After examining the factual background of the case, the Court noted that the stay put or pendent placement was the last agreed to iep, “…the dispositive factor in deciding a child's ‘current educational placement’ should be the Individualized Education Program . . . actually functioning when the ‘stay put’ is invoked."[17] Critical to the analysis was Burlington ’s holding that a final decision of the state operated as the last agreed to placement: “The decision in favor of the [parents] and the [private school] placements would seem to constitute agreement by the state to the change of placement.”[18] Thus in two-tiered states, the final state appeal panel decision is considered to be the last agreed to placement and therefore the pendent placement that must be implemented. The result is the same in one- tiered states such as New Jersey , except that the first and only decision rendered is the one issued by the administrative law judge. The Code of Federal Regulations lends support to this conclusion.

34 C.F.R. §300.514(c) states: “If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section.” The U. S. Department of Education’s explanation of the special education Regulations in Vol. 64, No. 48 of the March 12, 1999 issue of the Federal Register at page 12615 states in part: “…this provision does not limit either party’s right to seek appropriate judicial review under 300.512, it only shifts responsibility for maintaining the parent’s proposed placement to the public agency while an appeal is pending in those instances in which the State hearing officer or State review official determines that the parent’s proposed change of placement is appropriate.” (Emphasis added.) Therefore the defining point at which the pendent placement arises is when the state administrative process is final. In two-tiered states that point is reached when an appeals panel reviews the hearing officer’s decision and renders a final order appealable to a state or federal court. In one-tiered states such as New Jersey the pendent placement attaches upon the rendering of the final decision from the Office of Administrative Law. No further state administrative action appeals are possible. The decision is viewed as an agreement between the parent and the state for purposes of stay put.

According to the Supreme Court, “When the elaborate and highly specific procedural safeguards embodied in 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid.”[19] Being aware of timelines in special education cases can be critical in determining a child’s placement during the appeal process. The protection stay put offers should not be underestimated.

ENDNOTES

[1] 20 U.S.C.A. §1400. The legislation initially was named the Education for All Handicapped Children's Act of 1975, Public Law 94-142.

[2] 20 U.S.C.A. §1400(d).

[3] N.J.A.C. 6A:14-1.3.

[4] An accurately drafted iep is quite complex, as required by N.J.A.C. 6A:14-3.7

[5] 20 U.S.C.A. § 1415(e); N.J.A.C. 6A:14-2.6.

[6] 20 U.S.C.A. § 1415(f); N.J.A.C. 6A:14-2.7.

[7] N.J.A.C. 1:1-18.1.

[8] 20 U.S.C.A. § 1415(e); 34 C.F.R. § 300.509; 34 C.F.R. § 300.511; Colin K. v. Schmidt, 715 F2d 1, 5 (1st Cir. 1983). Also see Bernardsville Bd. of Educ. v. J.H., 42 F. 3d 149, 161 (3d Cir. 1994) which noted that “ ‘additional evidence’ under 20 U.S.C. § 1415(e) (2) ‘does not authorize witnesses at trial to repeat or embellish their prior administrative hearing testimony’; the trial court in its discretion must not allow ‘such evidence to change the character of the hearing from one of review to a trial de novo’… ‘additional evidence’ under 20 U.S.C. § 1415(e) (2) should not be cumulative, introduced to impeach credibility of administrative hearing witnesses, nor embellish testimony from the administrative hearing, and should not have been available for proffer during the administrative hearing.”

[9] N.J.A.C. 6A:14-2.7(n).

[10] 20 U.S.C. § 1415 (j). This section provides, inter alia, that: "During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child ... until all such proceedings have been completed."

[11] Honig v Doe, 484 U.S. 305 (1988).

[12] N.J.A.C. 6A:14-2.3(f). Note that this time period does not apply to the initial iep.

[13] Drinker v. Colonial School District , 78 F.3d 859, 867 (3d Cir. 1996).

[14] Burlington v. Department of Educ., 471 U.S. 359, 373 (1985).

[15] Susquenita School District v. Raelee S., 96 F.3d 78, (3rd Cir. 1996)

[16] Id.

[17] Id. at 84.

[18] Burlington at 372.

[19] Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176 (1982)

Theodore A. Sussan is a partner at Sussan & Greenwald in Cranbury. He has lectured and written on the subject of special education law.