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:
- The date that the parents applied to the private school?
- The date that the private school accepted the student?
- The date that the parents returned the acceptance letter to the private school?
- The date that the parents sent in their first deposit to the private school?
- The date that payment was made in full?
- 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.
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