You’re sitting in an executive session at 8 p.m. while the board attorney summarizes pending special education litigation and recommends approving a settlement agreement. As you listen, you may hear a lot of acronyms and unfamiliar terms, which go something like this:
“The student in this matter has an IEP that the district believes is providing FAPE in the LRE, but the parents unilaterally placed the student in an OOD and are seeking tuition reimbursement and prospective placement. It is recommended to resolve the matter through a settlement agreement to avoid the costs of a hearing, fee-shifting under the IDEA, and a potential ‘Perez’ filing.”
If you do not have a special education background, these terms may sound like another language, leaving you unsure of where to start with questions.
This article provides an overview of special education terms and concepts to serve as context for board members during executive session discussions about special education settlement agreements. It is not intended to offer an opinion regarding whether to resolve litigation in your district, nor is it intended to serve as a substitute for formal legal advice from the board attorney. Special education matters are fact sensitive, and you should always consult with your board attorney regarding specific matters.
Special Education Basics
Who – Students with Disabilities To be eligible for special education services:
- The student must have a disability.
- The disability must adversely affect the student’s educational performance.
- The student must need special education and related services (as opposed to just accommodations, e.g., extra time to complete tests and preferential seating in the classroom). In New Jersey, there are 14 eligibility categories, which range from “Autism” to “Other Health Impairment” to “Emotional Regulation Impairment.” (See N.J.A.C. 6A:14-3.5.) The student’s eligibility category is often referred to as the student’s “classification.”
What – IEPs The student’s special education program is set forth in an individualized education plan (IEP), which also contains the student’s present levels of academic achievement and functional performance, which you’ll often see abbreviated as PLAAFP. The IEP contains measurable annual goals, among other things. School districts are required to develop the IEPs with input from the student’s parents. The IEP is often described as the “road map” that the district follows to provide the student with special education services and to track how the student is progressing in the program.
Where – LRE Special education services can be implemented in a variety of settings, some of which include: a general education classroom with supplementary aids and services (e.g., in-class resource support); single subject resource programs; special programs in the district (e.g., an emotional regulation impairment or autism program); and, private schools approved by the New Jersey Department of Education for students with disabilities, which are referred to as out-of-district placements, abbreviated as OOD. When considering these various program options, the district must determine the least restrictive environment (LRE) for the student. This means that the district must attempt to educate the student with nondisabled peers to the “maximum extent appropriate,” while still ensuring that the student’s needs are being met. In other words, even though the general education setting with supplementary aids and services provides the most exposure to nondisabled peers, it is not the LRE for every student. For example, students with a behavioral disability may only have electives with nondisabled peers because they require a smaller, more structured setting with built-in behavioral supports for their academic classes to access and benefit from their educational program.
When – Timelines, Timelines, Timelines The special education process contains many timelines for districts to follow. Some of these timelines are recurring once a student has an IEP (e.g., the student’s IEP must be reviewed and developed at least once per year; the district must conduct evaluations of the student at least every three years, unless the parents and district agree to waive the reevaluation). Other timelines are triggered by parental requests (e.g., the district must respond in writing and/or hold an IEP meeting within 20 calendar days of a parental request to change their child’s program; the district must file a due process petition within 20 calendar days of a parental request for independent evaluations if the district is not going to grant the request). Even if the district is in compliance with these various timelines, the parents may not agree with the resulting substantive decision, which is within the parents’ rights and discussed later.
Why – FAPE The Individuals with Disabilities in Education Act (IDEA) is a federal law that outlines school districts’ responsibilities to students with disabilities, as well as the rights of the students and their families. The purpose of the IDEA is to ensure that “all children with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs.” (See 20 U.S.C. 1400(d)(1)). FAPE is measured by whether the IEP imparts a “meaningful educational benefit” to the child in the LRE, enabling the student to make progress “in light of the child’s circumstances.” (See Endrew F. v. Douglas County School District, 137 S. Ct. 988, 2017.)
Special Education Litigation
As mentioned above, parents may not always agree with a district’s decision regarding their child’s educational program. It is ideal when these issues are resolved at IEP meetings; however, when that is not possible, parents have procedural rights under the IDEA regarding dispute resolution alternatives. Specifically, parents may file requests for mediation and due process hearings with the Office of Special Education Programs within the NJDOE – and these matters are transmitted to the Office of Administrative Law for a hearing with an administrative law judge.
The nature of the dispute must fall into one of the following categories: identification (i.e., whether the student is eligible for special education services), reevaluation, classification, educational placement, the provision of FAPE, or disciplinary action.
Most due process petitions include a substantive “main” request, along with requests for compensatory education (educational services that may be owed if the district was not providing FAPE and/or was not implementing the IEP) and reimbursement of their attorney’s fees. For example, a family may claim that the district’s program was not appropriate, so they “unilaterally placed” (i.e., outside of the IEP process and without the district’s consent) their child in an OOD and are seeking reimbursement of the tuition, prospective placement at the OOD, compensatory education for when the child was in the district’s program, and reimbursement of their attorney’s fees. Another family may disagree with the district’s determination that their child was not eligible for special education services, and therefore seek an eligibility determination, an IEP to be developed, and compensatory education for when the child was not provided with special education services. Finally, other relief sought in due process petitions may include independent evaluations requests or reimbursement for private evaluations.
Settlement Considerations
Fee-Shifting The term, “fee-shifting” refers to attorney’s fees being available in IDEA cases to parents who are deemed the “prevailing party.” (See 20 U.S.C. § 1415(i)(3)(B)). A prevailing party is one who “succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” (See Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489,9th Cir. 1994).
District courts have jurisdiction over attorney fee actions brought under the IDEA. (See 20 U.S.C. § 1415(1)(3)). Therefore, following the completion of the matter at the Office of Administrative Law and the judge’s issuance of a final order, the parents have to apply to the district court, seeking reimbursement of attorney’s fees if they believe they were successful on a significant issue.
Because of the potential “fee-shifting” under the IDEA, it is an additional factor to consider when determining whether to resolve a matter before proceeding to a hearing at the Office of Administrative Law.
Multiple Filings In addition to due process requests that are litigated at the Office of Administrative Law, families may also file other actions, under the same set of facts, but in different forums.
In March 2023, the U.S. Supreme Court’s decision in Perez v. Sturgis Public Schools, confirmed that, so long as the family is seeking relief that is not available under the IDEA (e.g., money damages under the American with Disabilities Act for disability discrimination), the family may file a civil lawsuit in federal court (at the same time as a due process petition), seeking relief based on the same facts/theories that would support a due process claim under the IDEA.
Additionally, in April 2023, the NJDOE changed its complaint investigation procedures, expanding the NJDOE’s purview to substantive areas, like an educational program and FAPE. Historically, the NJDOE just investigated whether there was a procedural violation of the IDEA (e.g., missing one of the timelines referenced earlier). Therefore, a family can seek a determination from the NJDOE and an administrative law judge regarding whether the district provided FAPE to their child.
If multiple actions are pending, there may be a proposal to resolve all of the matters in one settlement agreement.
Statewide Staffing Shortages In New Jersey, there have been statewide staffing shortages for special education teachers, paraprofessionals, board certified behavior analysts and registered behavior technicians. Therefore, even when the parents and the district agree on the student’s special education program, the district may not be able to fully implement the IEP due to staffing shortages. For example, a student may be in an in-class support setting that does not have a special education teacher who would typically co-teach with the general education teacher. If this family files a due process petition, the district will already know, through no fault of its own necessarily, that it has not been providing all the services in the IEP to the student.
Special education matters can involve many issues, both substantive and procedural, and, like every IEP, are unique to every student. Your board attorney’s analysis of the litigation and executive session discussions are crucial to the board’s understanding of the agreements that it is tasked with approving.
Caitlin Pletcher is legal counsel at NJSBA.
