An instructive recent case on decisions about sufficiency of due process complaints is I.K. v. Montclair Board of Education, No. CV 16–9152, 2018 WL 2441761, 72 IDELR 101 (D.N.J. May 31, 2018) (unpublished). The court denied both a motion for summary judgment for the plaintiff-parent and a motion to dismiss on behalf of the defendant school district, and remanded the case to the administrative law judge. The child, born on May 20, 2013, was legally blind since birth, and lived in the school district until fall, 2017. The district identified her as a child with a disability and on May 2, 2016 proposed an IEP placing her at a school for the blind in the summer and a half-day inclusion class at the District Developmental Learning Center in the fall. The fall program was to feature equal numbers of students with and without disabilities. The parent believed that a full-day regular education program at the community pre-K would offer a less restrictive environment, and requested mediation and an independent evaluation at public expense. The parties eventually signed a mediation agreement providing that the child would receive a full-day placement in the Developmental Learning Center’s inclusion class for the 2016–2017 school year, but reached no agreement on the independent evaluation request.

The parent filed a due process complaint on August 29, 2016, alleging that the proposed IEP, as modified under the mediation agreement, denied the child a free, appropriate public education by not affording the least restrictive environment. The district moved to dismiss the complaint on the ground that it was insufficient, or in the alternative, on the basis of the mediation agreement. On September 13, 2016, the ALJ dismissed the complaint as insufficient, concluding that the mediation agreement prevented relitigation of the placement. The parent appealed to the district court, asserting violations of IDEA as well as Section 504 of the Rehabilitation Act and state law. She then moved for summary judgment on the count alleging that the ALJ erred in dismissing the due process complaint. Although the family had moved to another community, the parent sought compensatory education. The court initially rejected the district’s contention that the case was moot, relying on the request for compensatory education.

The court then rejected the district’s argument that the case should be dismissed because courts have no jurisdiction over appeals of ALJ-IHO decisions that a due process complaint is insufficient. Here the court reasoned that the ALJ’s decision was not actually on sufficiency, but instead the ALJ “effectively enforced a Mediation Agreement without a full hearing or record, [and] she effectively found that Z.S. received a FAPE.” Id. at *4. The federal court thus had jurisdiction under 20 U.S.C. § 1415(i)(2)(A). It reasoned that a sufficiency dismissal may be made only on the ground that the complaint fails to comply with the requirements of § 1415(b)(7)(A)(ii): that it include the name and address of the child and the name of the school the child attends, a description of the nature of the problem, and a proposed resolution to the problem. The court said that the mediation agreement, which was the basis for the ALJ’s decision, was not actually before the ALJ. Accordingly, “The Court will remand to the ALJ to conduct an evidentiary hearing as to whether Z.S.’s revised IEP, which called for placement in a full-day inclusion class at the District’s Developmental Learning Center, would have resulted in a FAPE in the least restrictive environment for the 2016–2017 school year, and whether Plaintiff is entitled to compensatory education.” Id. at *6. The court said that it would have had jurisdiction itself to enforce a mediation agreement under § 1415(e)(2)(F)(iii), but neither party sought that relief from the court, and fact issues would likely prevent summary judgment in any event.

The significance of the case for impartial hearing officers lies in its cautionary content: If the case is to be dismissed on the ground of insufficiency of the due process complaint, the order must state that clearly, the decision must in fact be based on the complaint’s failure to satisfy one or more of the requirements in § 1415(b)(7)(A)(ii), and the order must identify how the complaint is insufficient so that the party has the opportunity to amend the complaint . A dismissal on the basis of a mediation agreement or other settlement is a decision on the merits, and the hearing officer should make a record to serve as the basis for any necessary findings of fact determinations.