NOEL L. HILLMAN, District Judge.
J.A. is 11-years old and disabled. The primary diagnosis is autism with other secondary diagnoses. She is eligible for special education and related services under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3)(A), and protection under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("§ 504"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); New Jersey's Special Education Law, N.J.S.A. 18A:46-1 et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"). J.A. lives with her parents, J.A. and J.A., in Gloucester County, New Jersey.
On May 3, 3016, an individualized education program ("IEP") was implemented for her at Oak Knoll Elementary School in the Monroe Township Board of Education ("MTBOE") school district. The IEP was amended on May 9, 2017 for the following year. J.A.'s parents were dissatisfied with how MTBOE handled the May 3, 2016 IEP, and they were further dissatisfied with the May 9, 2017 IEP. As a result, on May 24, 2017, the J.A. family filed a Request for Due Process Hearing with the New Jersey Department of Education ("NJDOE") Office of Special Education Programs ("OSEP").
The IDEA guarantees that every child with a disability receive a free appropriate public education ("FAPE") from her public school if that school receives federal funding. 20 U.S.C. § 1412(a)(1)(A); 34 CFR § 300.101(a). One of the IDEA's procedural safeguards guaranteed to children with disabilities and their parents is "[a]n opportunity for any party to present a [due process] complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. § 1415(b)(6).
From the date of filing the due process complaint, the parties have thirty days within which to settle or otherwise resolve the dispute. 20 U.S.C. § 1415(f)(1)(B)(ii); 34 C.F.R. § 300.510(a)(1). This so-called "resolution period" totals 30 days, and if the case is not resolved, it proceeds to a hearing. 20 U.S.C. § 1415(f)(1)(B)(ii). The parties must exchange and disclose documents they intend to introduce at the hearing "not less than 5 business days prior to a hearing" ("5-day exchange rule"). 20 U.S.C. § 1415(f)(2)(A); 34 C.F.R. § 300.512(b)(1). Thereafter, if no adjournments are sought and granted, a final decision must be rendered within 45 days after the end of the 30-day resolution period ("45 Day Rule"). 34 C.F.R. § 300.515(a). The New Jersey DOE OSEP provides an essentially identical procedure.
Violations of these procedural safeguards constitute a denial of FAPE if they have: (1) impeded the child's right to a FAPE; (2) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or (3) caused a deprivation of educational benefits.
Plaintiffs claim that the state Defendants have violated the 45 Day Rule in their individual situation because as of the date they filed their complaint in this Court — May 23, 2018 — their administrative case was still pending, and they would not have another hearing before the ALJ until June 11, 2018, which was 383 days from the end of the resolution period and well beyond the 45 Day Rule. In addition, or as an adjunct, to their individual case, Plaintiffs have advanced a putative class action pursuant to Federal Civil Procedure Rule 23 for alleged systemic due process violations arising from the way New Jersey adjudicates FAPE disputes between families and local schools. More specifically, the class claims are asserted "on behalf of themselves and all persons who filed Requests for Due Process Hearings (`DP Complaints') for violations of special education laws with the NJDOE during the period January 1, 2011 through March 23, 2018 and who, after the case was transferred to the OAL, did not receive a decision within 45 days." Plaintiffs also advance class action claims against the state Defendants alleging that NJDOE's use of the OAL as the adjudicative body to resolve special education disputes is systemically flawed because assigned ALJs lack training, knowledge, and jurisdiction. (Counts One through Four.)
Plaintiffs' individual claims focus on the May 2017 Due Process Complaint, claiming that J.A. has been denied a FAPE in violation of the IDEA, Rehabilitation Act, ADA, and NJLAD. They seek judicial review of the ALJ's denial of their Motion to Amend their Request for a Due Process Hearing, Motion for Independent Educational Evaluations ("IEEs"), and Motion to Strike.
When Plaintiffs filed their complaint here, their Due Process Complaint before the OAL was still pending. On October 10, 2018, Plaintiffs filed a second action in this Court, Civil Action 18-14838, regarding a subsequent decision by the ALJ regarding their May 2017 Due Process Complaint and another consolidated Due Process Complaint.
Currently pending before the Court are Defendants' motions to dismiss Plaintiffs' complaint. Defendants argue, among other points, that because of the ongoing nature of Plaintiffs' Due Process Complaint in the administrative forum, Plaintiffs' claims should be dismissed for failure to exhaust administrative remedies. Also pending is Plaintiffs' motion to file an amended complaint in order to add additional named plaintiffs as class representatives.
Plaintiffs have asserted two different cases in one — a putative class action against the state Defendants for alleged systemic problems with compliance with the 45 Day Rule and a challenge to hearing officer qualifications, coupled and intertwined with an individual appeal of J.A.'s personal due process complaints regarding her claim against MTBOE that she has been denied FAPE. In the view of this Court, the two cannot proceed together.
With regard to Plaintiffs' individual claims, Plaintiffs' continuation of the May 2017 Due Process Complaint after filing suit here, as well as the filing of a second Due Process Complaint and proceeding with a consolidated Due Process Complaint before the OAL, warrants the dismissal of Plaintiffs' individual claims. Those claims, which necessarily turn on the individual and unique circumstances of J.A.'s due process complaints, are plainly unexhausted and must be dismissed. In contrast, Plaintiffs' claims of systematic failure fall within a clear exception to the exhaustion requirement and will be allowed to proceed in this Court under the parameters discussed below.
Generally, "`a plaintiff who seeks relief available under the IDEA must exhaust his administrative remedies before filing a lawsuit.'"
Administrative exhaustion under the IDEA is required even for non-IDEA claims, such as ADA and Section 504 claims, "where the plaintiff seeks relief that can be obtained under the IDEA."
Plaintiffs argue that exhaustion is not required because several of their counts (five through seven) are based on the ALJ's denial of their motions, and the decisions on those issues by the ALJ have reached their final resolution in the administrative process, thus causing them to be ripe for appeal. Those counts concern the ALJ's May 1, 2018 decision denying Plaintiffs' motion to amend the due process complaint, motion for IEEs, and motion to strike MTBOE's improper references to prior due process proceedings.
The Court does not find Plaintiffs' argument persuasive. First, Plaintiffs' dissatisfaction with how the ALJ has ruled on their various motions cannot give rise to piecemeal appeals over evidentiary and similar issues during the administrative hearing process such that Plaintiffs are excused from proceeding through the administrative process to finality. Accepting Plaintiffs' arguments on this score would render exhaustion a nullity.
Second, the futility exception does not apply where, as here: a) Plaintiffs have not previously utilized the IDEA administrative process on this particular due process claim, b) the factual record is not fully developed and evidentiary issues are not resolved, c) damages is not the only remaining issue and d) and the IDEA administrative process is in fact able to provide a suitable remedy for the primary harm alleged — J.A.'s denial of FAPE by MTBOE.
"Exhaustion serves the purpose of developing the record for review on appeal, encouraging parents and the local school district to work together to formulate an IEP for a child's education, and allowing the education agencies to apply their expertise and correct their own errors."
The purpose of the exhaustion requirement is directly relevant here. Plaintiffs may have advanced some claims that relate to the allegedly flawed administrative process, discussed in the next section, but Plaintiffs' ultimate concern as it pertains to J.A. is whether MTBOE has provided or will provide J.A. with FAPE — i.e., "an educational program reasonably calculated to enable [J.A.] to make progress appropriate in light of [J.A.'s] circumstances."
Plaintiffs' individual claims regarding the ongoing due process complaints at the administrative level must be dismissed because Plaintiffs must exhaust their administrative remedies for the underlying IDEA and related ADA and Section 504 claims regarding the alleged denial of a FAPE to J.A.
Plaintiffs have asserted putative class action claims based for their contention that NJDOE's system for resolving special education disputes in the State of New Jersey violates the IDEA by systemically and routinely violating the rights of all class members. Plaintiffs argue that the futility exception applies to their class action claims because the administrative process cannot provide them with the relief they seek — (1) that Defendants comply with federal law and regulations and provide a final decision rendered within 45 days after the end of the 30-day resolution period, and (2) that hearing officers are properly qualified. Plaintiffs argue, by way of their personal example, that because at the time they filed their complaint 383 days would have passed since the end of the 30-day resolution period, it would be futile to return to the administrative process as that process can never effect compliance with the 45 Day Rule once it has been violated. Moreover, Plaintiffs argue that their claims regarding hearing officer qualifications cannot be rectified at the administrative level as part of their individual due process complaint.
The Court agrees with Plaintiffs that their systemic claims fall within an exception to the exhaustion requirement set forth above.
First, with regard to Plaintiffs' claims for Defendants' 45 Day Rule violation, the regulations provide the following:
Timelines and convenience of hearings and reviews.
34 C.F.R. § 300.515.
Due process hearings
N.J.A.C. 6A:14-2.7.
Plaintiffs relate that in 2016, the New Jersey Special Education Practitioners ("NJSEP") created a task force to study the State of New Jersey's compliance with the 45 Day Rule. The NJSEP 45 Day Report found that, despite the federal and state law requirements that special education cases brought pursuant to IDEA should be decided within 45 days after the 30-day resolution period, on average such cases took three hundred twelve (312) days to be adjudicated. The 45 Day Report found New Jersey was noncompliant dating back to 2011, and the NJSEP called upon those with authority to take immediate action to rectify noncompliance. Plaintiffs claim that no such steps to remedy noncompliance have been taken to date. (Docket No. 1 at 17-18.)
Plaintiffs claim that the state Defendants have failed to ensure that procedural requirements guaranteeing parents the opportunity to present a due process complaint and receive a prompt resolution of the dispute within the statutory time frame are available and enforced. Plaintiffs claim that by selecting OAL as the body to handle special education disputes, the state Defendants knew or should have known that its system for resolving special education disputes was flawed ab initio, and that the OAL could never comply with the 45 Day Rule. (Docket No. 1 at 30-31.)
With regard to the qualifications of a hearing officer, the regulations provide:
20 U.S.C. § 1415(f)(3)(A)(i).
20 U.S.C. §§ 1415(f)(3)(A)(ii) — (iv).
Plaintiffs claim that NJDOE's decision to use the OAL as the adjudicative body to resolve special education disputes has resulted in a denial of FAPE to children with disabilities and their families because the State of New Jersey suffers from a systemic design flaw. More specifically, Plaintiffs claim that the since the OAL has a limited number of ALJs, those ALJs assigned have little or no training in special education law, and lack jurisdiction to award all forms of relief under special education laws, NJDOE knew or should have known that its system for resolving special education disputes through the OAL was flawed ab initio.
Moreover, Plaintiffs claim that even though the ALJs are not technically employees of the NJDOE, the ALJs are employees of the OAL, an executive branch agency like the NJDOE, and because the budget and salaries of NJDOE and OAL employees are subparts of and determined by the larger budget of the executive branch, they are beholden to the same pot of money. Plaintiffs allege that this creates a personal and professional interest that conflicts with the ALJ's objectivity in a special education due process hearing. (Docket No. 1 at 33.)
Plaintiffs further claim that most of the ALJs assigned to special education cases by the OAL in New Jersey do not have special training in nor possess knowledge of the provisions of IDEA. Further, by its own admission, the OAL, as an executive branch agency instead of a judicial branch court, does not have jurisdiction to render interpretations of, or conduct hearings in special education cases in accordance with, standard legal practice. As a result, Plaintiffs claim that they are harmed by this lack of expertise in special education law and an adjudicative process of limited jurisdiction. (
For both alleged violations, Plaintiffs contend that NJDOE's systemic violations of the IDEA, as distinguished from their claims arising from their particular due process complaint, have caused Plaintiffs — and all others similarly situated — harm and seek an array of equitable and legal remedies. Precedent in this Circuit establishes that a plaintiff asserting claims of this kind need not exhaust those claims administratively. "In the IDEA § 1415 context, plaintiffs may [] be excused from the pursuit of administrative remedies where they allege systemic legal deficiencies and, correspondingly, request system-wide relief that cannot be provided (or even addressed) through the administrative process."
Unlike Plaintiffs' individual claims concerning J.A.'s due process complaints, Plaintiffs' claims for violations of the 45 Day Rule and hearing officer qualifications are not subject to the exhaustion requirement. Plaintiffs' claims allege two systemic defects perpetrated by the state Defendants, and those alleged defects cannot be redressed through the administrative process, which is the very process Plaintiffs challenge.
This finding does not, however, fully resolve the current procedural tangle caused by Plaintiffs' filing of two complaints and the tactical decision to combine exhausted and unexhausted causes of action in the same complaint. In an apparent attempt to offer a solution, Plaintiffs have moved for leave to file an amended complaint to add two additional families — the L.S. Family and the R.M. Family — as additional proposed class representatives for their claims regarding the 45 Day Rule.
The Court will grant Plaintiffs' motion to amend. In doing so, the Court recognizes that Defendants have raised a series of defenses centering on whether the three named families have standing to challenge — or stated differently are proper class representatives regarding — the 45 Day Rule. Procedures for adjournments are nuanced and it appears clear that not every proceeding — and even perhaps most proceedings — that extends beyond 45 days violates federal law.
On balance, and to promote the orderly consideration of Plaintiffs' systemic claims, the Court deems it best to deny the state Defendants' motion in that regard without prejudice pending Plaintiffs' submission of an amended class action complaint consistent with this Opinion, applicable pleading standards and jurisdictional constraints. In sum, the Court will order the following:
An appropriate Order will be entered.
MTBOE filed its answer to Plaintiffs' second action on December 26, 2018. (18-14838, Docket No. 5.) Neither Plaintiffs nor Defendants have filed the appropriate application or motion so that Plaintiffs' challenge to the ALJ's decision on the 5-day exchange rule violation can be considered by the Court. Without any indication from the parties otherwise, the Court assumes that the October 29, 2018 hearing was not held, and Plaintiffs' consolidated Due Process Complaint remains pending but in suspension in the OAL. The Court also notes that the ALJ's "permission" for Plaintiffs to appeal his ruling in this Court is without legal force.
