N.J. Admin. Code § 1:6A-12.1 - Emergency relief pending settlement or decision

(a) As part of a hearing request, or at any time after a hearing is requested, the affected parent(s), guardian, board or public agency may apply in writing for emergency relief pending a settlement or decision on the matter. An emergency relief application shall set forth the specific relief sought and the specific circumstances which the applicant contends justifies under (e) below the relief sought. Each application shall be supported by an affidavit prepared by an affiant with personal knowledge of the facts contained therein and, if an expert's opinion is included, the affidavit shall specify the expert's qualifications.

(b) Prior to the transmittal of the hearing request to the Office of Administrative Law, applications for emergency relief shall be addressed to the State Director of the Office of Special Education Programs, with a copy to the other party. The Department shall forward to the Office of Administrative Law by the end of the next business day all emergency relief applications that meet the procedural requirements in (a) above and which set forth on the face of the application and affidavits circumstances which comply with the standards set forth in N.J.A.C. 6A:14-2.7(r). Emergency relief applications which fail to comply with the procedural requirements above or which do not comply with the standards set forth in N.J.A.C. 6A:14-2.7(r) shall be processed by the Department in accordance with N.J.A.C. 1:6A-9.1.

(c) After transmittal, applications for emergency relief must be made to the Office of Administrative Law, with a copy to the other party.

(d) The Office of Administrative Law shall schedule an emergency relief application hearing on the earliest date possible and shall notify all parties of this date. Except for extraordinary circumstances established by good cause, no adjournments shall be granted but the opponent to an emergency relief application may be heard by telephone on the date of the emergency relief hearing. If emergency relief is granted without all parties being heard, provision shall be made in the order for the absent parties to move for dissolution or modification on two days' notice. Such an order, granted without all parties being heard, may also provide for a continuation of the order up to 10 days.

(e) At the emergency relief hearing, the judge may allow the affidavits to be supplemented by testimony and/or oral argument. The judge may order emergency relief pending issuance of the decision in the matter or, for those issues specified in N.J.A.C. 1:6A-14.2(a), may order a change in the placement of a student to an interim alternative educational setting for not more than 45 days in accordance with 20 U.S.C. § 1415(k)(2), if the judge determines from the proofs that:

1. The petitioner will suffer irreparable harm if the requested relief is not granted;

2. The legal right underlying the petitioner's claim is settled;

3. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and

4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted.

(f) Judges may decide emergency relief applications orally on the record and may direct the prevailing party to prepare an order embodying the decision. If so directed, the prevailing party shall promptly mail the order to the judge and shall mail copies to every other party in the case. Unless a party notifies the judge and the prevailing party of his or her specific objections to the order within five days after such service, the judge may sign the order.

(g) After granting or denying the requested relief, the judge shall return the parties to the Department of Education for conclusion of the resolution process or mediation, as provided in N.J.A.C. 6A:14-2.7.

Notes

N.J. Admin. Code § 1:6A-12.1

Amended by R.2000 d.94, effective 3/6/2000.
See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
In (a), substituted "State Director of the Office of Special Education Programs" for "Department of Education, attention Division of Special Education" in the first sentence; and rewrote (e) and (g).
Amended by R.2005 d.261, effective 8/15/2005.
See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
In (b) and (g), substituted "N.J.A.C. 1:6A-4.1" for "N.J.A.C. 1:6A-4.2".
Amended by R.2010 d.275, effective 12/6/2010.
See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
In (b), substituted "comply with the standards set forth in N.J.A.C. 6A:14-2.7(r)" for "would justify emergency relief under this section", deleted "show no right to emergency relief or" preceding "fail", inserted "or which do not comply with the standards set forth in N.J.A.C. 6A:14-2.7(r)" and updated the N.J.A.C. reference; and rewrote (g).