If you live in New Hampshire and have a child on an IEP, it is vital that you know about Governor Sununu’s Emergency Order #48. This impacts ALL New Hampshire IEP Teams in a major way.

On May 26, 2020, Governor Sununu issued Emergency Order #48, “Special Education Requirements to Support Remote Instruction.” The impact of this order on special education cannot be overstated. It is jaw-dropping.

The order consists of three parts:

Part 1

1. Each school district is required to hold Individualized Education Plan (“IEP”) team meetings, as set forth in RSA 186-C:7 and Ed 1107, to consider Extended-School Year (“ESY”) services for every child with an IEP, regardless of whether they have been provided ESY in the past, no later than June 30th, 2020. If, at the time of the IEP team meeting, the remote instruction emergency orders have been neither removed nor extended through the summer, the IEP program team shall consider options for both traditional in-person ESY programs and for remote ESY programs.

NH Emer. Or. 48 (May 26, 2020)

Analysis of Part 1

First, some background: Governor Sununu’s prior emergency orders #1, 19 and 32 required public school districts to transition to remote instruction and support , due to the COVID-19 pandemic. However, the New Hampshire Department of Education (“NHDOE”) has issued guidance authorizing in-person special education services in some circumstances.

As we approach the end of the school year, parents, children and educators are all wondering what summer services for special education children (a.k.a. Extended School Year, or ESY) should look like. By now, many Teams have already conducted their annual IEP meetings, so without this order, there might not be another chance to discuss what summer services should look like in this uncertain environment. This order requires each IEP Team to reconvene by June 30 for the specific purpose of considering ESY services. Even if your child has never received ESY services, the Team is still required to meet and discuss ESY.

By the time your Team does meet, there might or might not be updated emergency orders impacting remote education, special education and/or summer services. If there are no changes to the status quo by the time your Team meets, the Team is required to consider ESY options that are both in-person and remote.

Part 2

2. Each school district must ensure that they hold IEP team meetings for every student identified for special education services no later than 30 calendar days after the first day of the school district’s 2020-2021 school year. At the meeting, the IEP team will consider what Compensatory Education Services, if any, are required to be provided to make up for services not provided during period of remote instruction and support, student regression, or student’s failure to make expected progress as indicated in the student’s IEP.

NH Emer. Or. 48 (May 26, 2020)

Analysis of Part 2

Again, some background: Typically, if a school district fails to provide services required under an IEP, the child is entitled to receive extra services in the future to make up for the district’s past or present failure. This is referred to as compensatory services. But what if the failure to provide the services was not the fault of the district? That becomes more complicated, and is very fact and case specific. What if all required services were appropriately provided, just as the parents and district agreed to, but the child failed to make progress, or even regressed? Usually, that would result in changed services, but not compensatory services.

Governor Sununu’s emergency order requires every IEP Team to consider compensatory services related to the remote instruction. This would be stunning in and of itself, but the order goes much further. It clarifies that compensatory services might be needed for any of the following three reasons:

1. To make up for services not provided during this period of remote instruction and support;
2. To make up for student regression; or
3. To make up for student’s failure to make expected progress as indicated in the IEP.

The word “or” in the above is vital. This clarifies that even if all services were provided during remote instruction, if the student regressed, or even just failed to make effective progress during this period, compensatory services might be needed.

Not to be overlooked is the timeframe. The compensatory service meeting must occur no later than 30 calendar days after the start of the 2020 – 2021 school year.

Part 3

3. The requirements of Ed 1100, et seq., (“Standards for the Education of Children with Disabilities”) including but not limited to the provisions relating to the timing of evaluations and IEP team meetings, except as modified in this Order, are not waived, but remain in full force and
effect, except as follows: For any evaluation criteria described in Ed 1100, et seq., that cannot be satisfied because of the shift to remote instruction and support (e.g., classroom evaluations) the school district shall: a) include in its evaluation the reason the criterion was not considered and b) use best efforts to obtain the information the IEP team needs to determine eligibility and services/supports the child needs to receive a free appropriate public education (FAPE) via other available criteria.

NH Emer. Or. 48 (May 26, 2020)

Analysis of Part 3

Again, some background: There are two common types of school evaluations related to special education. First, students are evaluated as a key part of the eligibility process, to determine if they need an IEP. Thereafter, if found eligible, students are evaluated at least every three years. Evaluations usually involve a lot of in-person testing. Given the current environment, some evaluators have found ways to do much of their testing remotely.

This portion of Order 48 is saying that evaluations and related Team meetings must take place when they were supposed to take place, and remote instruction cannot be used as an excuse for not following the required timelines. If part of an evaluation cannot take place properly due to remote instruction, such as an evaluator not being able to observe the student in the classroom, the school district must document and explain this in the evaluation. Furthermore, they are still not off the hook. They need to go further, and use “best efforts” to obtain the information through an alternative means.

Summary

This emergency order is huge for special education children in New Hampshire. It might, but does not necessarily, require ESY and compensatory services. What it absolutely does require are two sets of Team meetings for every child on an IEP in New Hampshire. Teams will have to convene meetings by June 30 of this year to discuss ESY, and again within 30 days after school starts in August or September to consider compensatory services. Given that there are tens of thousands of students on IEPs in New Hampshire, this means there are going to be a LOT of Team meetings coming up.

If you believe your child requires ESY or compensatory services, don’t let yourself or your child fall through the cracks. If the school district does not set up the meetings, you should communicate with the district to make sure the required meetings occur.

It is also vital that parents prepare for these meetings. You need to know your rights. Given the specific circumstances of your case, you need to know not only what you are entitled to, but also what is reasonable under the law and what is not reasonable. If you are unsure about any of this, you might want to consult with a special education attorney or advocate.

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 https://www.lawbaron.com for more information, or to schedule a phone or video consultation.