NH Statute of Limitations for Unilateral Placements – A Trap for the Unwary

A statute of limitations defines how long you have to bring a legal action.  With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B).  If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement.  In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement.  RSA 186-C:16-b.  The 90 days runs from the date the unilateral placement is made.  Further complicating this is that the date of the unilateral placement is not always clearcut.  For example, is it:

  1. The date that the parents applied to the private school?
  2. The date that the private school accepted the student?
  3. The date that the parents returned the acceptance letter to the private school?
  4. The date that the parents sent in their first deposit to the private school?
  5. The date that payment was made in full?
  6. The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?

Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually.  If notice was not given, then the 90 days would not start running until proper notice is given to the parents.

The exact wording of the NH law is:

  186-C:16-b Due Process Hearing; Appeal. –
    I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.

What Should Happen When a Special Ed Child Moves

Consider this hypothetical (or not so hypothetical) situation: You have made the decision to move to a different school district.  Your child is on an IEP.  The new school district believes that the services documented in the IEP are not appropriate, and tells you that they will not be providing those services, or that they do not have anything comparable.

In the above situation, is the school district operating within the law?  NO!  The Individuals with Disabilities Education Act (IDEA) is very clear that when a child changes school districts within the same state, “the local educational agency shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents until such time as the local educational agency adopts the previously held IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law.”  20 U.S.C. § 1414(d)(2)(C)(i)(I).  Massachusetts has very similar wording in its regulations: 603 C.M.R. § 28.03(c)(1).

In other words, the new district must immediately provide services that are comparable to the old district’s IEP.  At some point, the new district will need to decide whether it will adopt the old district’s IEP, or attempt to develop a new IEP.  If the new district tries to develop a new IEP, that new IEP would not be considered the effective IEP until the parent accepts it.

For families who are moving across state lines, the IDEA provides very similar wording and protections.  The big difference for families changing states is that the new district must provide comparable IEP services until the new district conducts an evaluation of the student and develops a new IEP.  20 U.S.C. § 1414(d)(2)(C)(i)(II)34 C.F.R. § 300.323(f).

There is also often a question of records.  How do the old records get to the new school?  Again, IDEA defines the district’s responsibilities.  The new school “shall take reasonable steps to promptly obtain the child’s records… from the previous school in which the child was enrolled.” 20 U.S.C. § 1414(d)(2)(C)(ii).

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Hamilton-Wenham Special Education Basic Rights Workshop – 02/27/13

Basic Rights In Special Education: A Workshop for Parents and Professionals will be held Wednesday, Feb. 27, at 6:30 p.m. in the multi-purpose room of the Buker School, 1 School St., Wenham. The Basic Rights workshop provides families and professionals with an introduction to their rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), Massachusetts Special Education Law and No Child Left Behind (NCLB). It is designed to help parents learn to be effective partners with their child’s school to decide their child’s eligibility for special education, and to plan, make decisions and monitor their child’s progress in school. A presenter from the Federation for Children with Special Needs will conduct this workshop.  Federation workshops are free and open to the public.  You are welcome to attend any workshop in or outside of your immediate community. For more information, contact Adele Raade at 617-335-1124 or araade@comcast.net.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Metrowest Special Needs Resource Fair

I will be participating at the 2nd Annual Metrowest Special Needs Resource Fair.  There will be vendors available to discuss their special-needs based programs, services and resources.  The event, sponsored by the Natick SEPAC, will be held at Natick High School, 15 West Street in Natick, this Sunday, February 10, 2013 from 1:00 PM – 3:00 PM.  Admission is free.  If you are there, please stop by and say hi (I will be at Table 14).  I would be happy to talk with you about special education legal issues or special needs estate planning. Hopefully the impending snowstorm will be cleared out by Sunday!

For more information, go to the Natick SEPAC web site.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

New Section to Student Discipline: 37H 3/4

There is an entirely new section that will be added to the student discipline statute in Massachusetts, effective July 1, 2014.  This new section will provide students with several important rights in the disciplinary process, and will assign several new responsibilities to school districts.  It will be referred to as section 37H 3/4, and will have 6 supbarts, summarized as follows:

  • (a):  This subpart  states that 37H 3/4 applies to all students who are suspended or expelled, with a few very big exceptions.  37H 3/4 does not apply:
    • If a student is found with a dangerous weapon or a controlled substance on school grounds, or at a school-sponsored or school-related event; or
    • If a student assaults school faculty or staff on school grounds, or at a school-sponsored or school-related event; or
    • If a student is charged with a felony.
  • (b):  This subpart requires the  decision maker at a disciplinary hearing  to “exercise discretion; consider ways to reengage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.”
  • (c): Students suspended or expelled under 37H 3/4, as well as their parents, must be provided with written notice  of the charges and the reason for the suspension or expulsion in English, as well as in the student’s primary language if that language is other than English.   The affected student also must have the opportunity to meet with the principal, headmaster, or other designee to discuss the charges and reasons for the suspension or expulsion prior  to the suspension or expulsion taking effect.  Parents must be given the opportunity to participate in this meeting, as well.
  • (d): This subpart concerns notification:
    • If  the principal makes a decision to suspend or expel a student after the meeting described in subpart (c),  then the principal shall  update the written notification to reflect the meeting that took place;
    • If a student is suspended or expelled for more than 10 school days in any school year, the school must provide the  student and parents  with written notification of a right to appeal and the process for appealing.  However, the suspension or expulsion will remain in effect prior to any appeal hearing;
    • If a student in kindergarten through grade 3 receives an out of school suspension, the principal shall notify the superintendent in writing “prior to such suspension taking effect.”
  • (e): This subpart concerns the appeals process:
    • Students suspended or expelled for more than 10 school days – whether contiguous or cumulative – shall have the right to appeal the suspension or expulsion to the superintendent;
    • Students or parents  must notify the superintendent in writing of their request for an appeal within 5 calendar days of the effective date of the suspension or expulsion.  However parents or students may also request an extension of up to 7 calendar days, and if such an extension is requested, then it “shall be granted.” The wording of this law is a bit vague.  My reading of this law is that students can request an additional 7 calendar days beyond the initial 5, allowing for a total of 12 calendar days to appeal.  However, I can foresee some school districts trying to argue that the law only allows for an additional 2 days, for a total of 7 calendar days;
    • The superintendent must make a good faith effort to include the parent or guardian in any appeal, but does have the right to proceed with an appeal hearing without the parent or guardian, as long as that good faith effort was made;
    • At the appeal hearing, students have the right to present  oral and written testimony, and to cross-examine witnesses.  Interestingly, it is only the student who has this right, not the parent or guardian.  However, the student does have the right to counsel at the appeal hearing;
    •  The superintendent must render his or her decision within 5 calendar days of the hearing, and this decision is the final decision of the school district.  No further appeals within the school district are allowed.
  • (f): “No student shall be suspended or expelled from a school or school district for a time period that exceeds 90 school days, beginning the first day the student is removed from an assigned school building.”

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

My Child Was Suspended for Having a Knife at School – Now What?

The first assumption I am going to make for this blog article is that the child has an IEP.  Having an IEP does make a big difference in terms of how the school can deal with disciplining the child.

There are three distinct discipline time-frames that should be considered.  The first time-frame is short term, and concerns suspensions for 10 school days or less; the second time-frame is medium term, and concerns discipline for up to 45 school days; the third time-frame is long-term, and concerns discipline that might extend beyond 45 school days.

Regarding a 10 day suspension, the federal Individuals with Disabilities Education Act (IDEA) applies.  Under the IDEA, “School personnel… may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives are applied to children without disabilities).” 20 U.S.C. § 1415(k)(1)(B).  In other words, a special education child can be disciplined just like a non-special education child for up to 10 school days.

Any removal beyond 10 school days is considered a change in placement.  For any such change in placement, the school district needs to conduct a Manifestation Determination to determine if the behavior in question is a manifestation of the child’s disability, or if the conduct in question may have been caused by the school district’s failure to implement the IEP.  If the conduct is found to be a manifestation of the disability, the district is required to conduct a Functional Behavioral Assessment and to develop a Behavior Plan, and also to return the child to the placement from which he was removed.  20 U.S.C. § 1415(k)(1)(E)-(F).  If the behavior was not a manifestation of a disability, the child can be removed from his then-current placement, though he shall “continue to receive educational services… so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.”

The above paragraph applies to any type of discipline issue if the school district is trying to remove the child for more than 10 days.  However, regardless of the outcome of the Manifestation Determination, the school district may remove a child to an interim alternative educational setting in various special circumstances.  One such special circumstance is when a child possesses a weapon – which includes a knife – on school grounds.  20 U.S.C. § 1415(k)(1)(G).  Under federal law, one big question concerns the size of the knife.  According to 18 U.S.C. § 930(g)(2), the definition of a weapon “does not include a pocket knife with a blade of less than 2½ inches in length.”  If the knife in question is less than 2½ inches in length, the district would not have the right to remove the child under this section of the law.

So far we have discussed only federal law.  In Massachusetts, state law also applies for longer term suspensions (potentially beyond 45 school days).  Under Mass. Gen. Laws ch. 71 § 37H(a), a school principal may expel any student “who is found on school premises or at school-sponsored or school-related events, including athletic games, in possession of a dangerous weapon, including, but not limited to, a gun or a knife.”  Any student so charged must be notified in writing of an opportunity for hearing, and be allowed to have legal representation, as well as the opportunity to present evidence and witnesses at a hearing with the principal. The principal does have discretion to suspend rather than expel a student. (Mass. Gen. Laws ch. 71 § 37H(c)).  There is also the right to appeal to the superintendent within 10 days of the expulsion.  (Mass. Gen. Laws ch. 71 § 37H(d)).

To make matters even more concerning, Massachusetts law also states:  “When a student is expelled under the provisions of this section, no school or school district within the commonwealth shall be required to admit such student or to provide educational services to said student. If said student does apply for admission to another school or school district, the superintendent of the school district to which the application is made may request and shall receive from the superintendent of the school expelling said student a written statement of the reasons for said expulsion.”  (Mass. Gen. Laws ch. 71 § 37H(e)).   In other words, if a principal, in his or her sole discretion, expels a student from school because of one of the above violations, the student may not be able to attend public school anywhere else in Massachusetts.  Even moving from one district to another might not help.  Luckily, federal law does serve as a safety net, such that school districts do need to provide IEP services for special education children, regardless of any discipline decisions that are applied.

Regarding the size of the knife, Massachusetts law does not have the same 2 ½ inch provision that federal law does.  This means that even if you might have a strong argument that the district should not be able to apply a 45 day removal under IDEA because it cannot prove that the child had a knife larger than 2 ½ inches, the school district would still be able to apply a 45 day or longer suspension or removal under Massachusetts law.

For more information about Chapter 37H, 37H 1/2, and upcoming changes to this area of the law in Massachusetts, please refer to my other blog articles:

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Medway SEPAC to Host “What the Dracut Decision Taught Us About the Importance of Social Skills and Language Pragmatics in an IEP”

The Medway SEPAC will be hosting what should be a very interesting and informative presentation entitled “What the Dracut decision taught us about the Importance of Social Skills and Language Pragmatics in an IEP.”  It will take place on January 22, 2013 at 7:00 PM at Medway High School, 88 Summer Street Medway, Ma 02053.  The presentation will be free and open to the public.  If you plan to attend, you should RSVP to medwayspedpac@gmail.com.  Discussions will be led by Elsa Abele MS CCC/SLP & clinical Assistant Professor at Boston University & Professor at the Center For Autism Disorders at Antioch University.  The presentation will also feature two lawyers from the Disability Law Center of Massachusetts who worked on this case, Janine A. Solomon and Pamela J. Coveney.  The Dracut case is a very important BSEA decision in Massachusetts, particularly for those students on the Autism Spectrum.  If you would like to read a good summary of this case, you can access it here.  The complete BSEA decision can be found here.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Triton plans special education workshops

Triton’s office of special education, along with the Massachusetts Association of Special Education Parent Advisory Councils, will present a Basic Rights Workshop at Triton Regional High School on Thursday, Jan. 10, from 10:30 a.m. to 12:30 p.m. and again on Wednesday, Jan. 16, from 6:30 to 8:30 p.m.

The presentation will be given jointly by David Magee, Triton’s administrator of special education, and Leslie M. Leslie of MassPAC. Magee also will invite parents of students receiving special education services to participate in establishing a vision for Triton’s Special Education Parent Advisory Council.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

AANE Support Group Regarding Connecticut Tragedy

The Asperger’s Association of New England (AANE) has announced the formation of support groups for those with Asperger’s and/or their families who would like support regarding the tragedy in Connecticut.  AANE, in conjunction with Aspire (formerly YouthCare) will facilitate six groups run by staff from Aspire, AANE, as well as with Asperger’s Syndrome (AS) expert clinicians. These groups will provide a private setting to discuss the tragedy, the link the media has made between the shooter and AS, and the impact on those with AS and their families. One of the support groups will be for parents of children with Asperger’s, and will discuss how and whether to talk to children with Asperger’s about this event. You are invited to attend the appropriate group.Here is a listing of the Groups and when they will meet

Wednesday 10:30 – 12:00, at AANE, 51 Water Street, Watertown, MA
1. Parents of children and young teens (under 16)
2. Parents, adult sibling, grandparents and other family members of older teens (16+) and adults
3. Adults with AS. Spouses and partners welcome.

Thursday night 7:30 – 9:00 at AANE, 51 Water Street, Watertown, MA
1. Parents of children and young teens (under 16)
2. Parents, adult sibling, grandparents and other family members of older teens (16+) and adults
3. Adults with AS. Spouses and partners welcome.

Please RSVP to AANE by email. (info@aane.org). Let them know which day and which group you will be attending.

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.

Somerville Special Education Group Seeks Parents for Fellowship Position

The Somerville Special Education Advocacy Project is inviting Somerville parents to apply for an innovative Advocate Training Fellowship program this spring to strengthen the capacity and expertise of parents of children with disabilities in the city as SSEAP enters its next phase.

The Fellow will receive intensive training by an experienced attorney and will participate in a range of activities, including working on the MAC (Massachusetts Advocates for Children) Helpline (doing intakes and providing advice to callers), attending Team meetings with a MAC attorney, writing, and handling cases with close supervision. Applicants must be available to work on a half-time basis for six months starting in May 2013. They must also take and complete the Parent Advocate Training offered by the Federation for Children with Special Needs on eight dates in April and early May. A scholarship will be provided to enroll in this training. Applicants must be Somerville residents.

Parents interested in learning more about this opportunity should contact Johanne Pino, MAC Project Coordinator at 617-357-8431 x 234 or jpino@massadvocates.org. They can download a copy of the application from http://www.massadvocate.org and send it to Johanne Pino, Massachusetts Advocates for Children, 25 Kingston 2nd floor, Boston MA 02111 by December 20, 2012 or by email jpino@massadvocates.org

Read more: Somerville special education group seeks parents for fellowship position – Somerville, Massachusetts 02144 – Somerville Journal http://www.wickedlocal.com/somerville/news/x1156352427/Somerville-special-education-group-seeks-parents-for-fellowship-position#ixzz2EOLBpbR0

The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire.  Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
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