The New Hampshire Department of Education (“DOE”) has issued an important technical advisory related to Governor Sununu’s Emergency Order #48 (“EO48”).

The first part of EO48, signed on May 26, 2020, stated,

[I]t is hereby ordered, effective immediately, that… each school district is required to hold Individualized Education Plan (“IEP”) team meetings… 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.

On it’s face, given that the order is “effective immediately,” this would appear to require school districts to hold Team meetings between the effective date of the order (May 26) and June 30. However, the NH DOE issued a technical advisory on June 10, in which the DOE indicated that Teams do not need to reconvene to consider ESY again if the Team previously met to consider ESY for 2020 – potentially even if the meeting took place prior to the COVID outbreak. Specifically, the DOE’s advisory is as follows:

Emergency Order #48 does not impose a requirement that IEP meetings to assess Extended School Year (“ESY”) services must take place between the issuance of the Order and June 30, 2020, nor does it require a duplication of effort if such an IEP meeting has already taken place. Any IEP team meeting that was held after the transition to remote instruction and support necessitated by Emergency Order #1 and which considered whether a student with a disability required ESY services to receive a FAPE satisfies the requirement of paragraph one of Emergency Order #48. That is, any team meeting held between March 15, 2020 and June 30, 2020, which addressed ESY is in conformity with the Order. A team meeting held prior to March 15, 2020 may be compliant, if the school offered the parent an opportunity for an IEP team meeting to reconsider the student’s eligibility for ESY…

The DOE’s guidance even allows the requirements of EO48 to be met if the Team met to discuss ESY prior to the advent of remote instruction, if the parents were subsequently offered another Team meeting to discuss ESY in light of remote instruction, but the parent declined that meeting offer. Specifically, the guidance states:

If an IEP team meeting was held prior to the start of remote instruction and support, which considered ESY services, this meeting may be deemed compliant with Emergency Order #48’s timeline for ESY team meetings pursuant to the following conditions: The school has documented communication with the parents regarding whether the child requires ESY services to receive a FAPE as a result of remote instruction and support and the school has informed the parent that if they disagree with the school’s determination that ESY services are not required that the parent has the right to request an IEP team meeting by June 30, 2020.

Based on this guidance, if a meeting was held prior to the COVID outbreak to discuss ESY, the school district needs to notify parents that the parents have the right to request another Team meeting to consider ESY that might be needed as a result of remote instruction. This puts the burden on the parents to request another Team meeting, prior to June 30, to consider ESY. It is important for parents to understand and utilize this right if ESY was considered prior to the COVID outbreak. The need for ESY in June might look very different for a student than it looked prior to March of 2020.

The second part of EO48 stated:

[It] is hereby ordered, effective immediately, that… 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.

Again, the DOE has issued clarifying guidance. According to the DOE, school districts can meet at any time to discuss the need for compensatory services resulting from remote instruction – not just during the first 30 days. Specifically, the DOE’s guidance states:

[EO48] does not require schools to hold IEP meetings that are redundant to meetings that have already been held. Any IEP meeting held since the commencement of remote instruction and support (i.e., March 15, 2020) that addresses the possible need for Compensatory Services for the 2020-21 school year necessitated by remote instruction and support complies with the requirement of the Order. For schools who have not yet held such meetings, there is no requirement to wait for the start of school to do so. Such meetings can be held before the school year begins, any time up to 30 days after the commencement of the school’s school year.

This part of the guidance concerns me. The longer remote instruction goes on, the more there might be a need for compensatory services. However, under the terms of this guidance, if a district held a meeting in March to discuss compensatory services that might result from remote instruction, then the district has met its burden – even if the need for compensatory services is much different in June or September than in March. How would the Team know in March which services would not be provided over the next several months, or how a student might regress during that time period?

I am also concerned that the tense used in the governor’s order conflicts with the DOE’s interpretation of that order. I trust that the governor chose his words carefully and purposefully. The governor very clearly used the future tense. Note, in the governors’ order quoted above, he stated: “At the meeting, the IEP team will consider what Compensatory Education Services, if any, are required…” Unless we time travel, I do not see how something required in the future can be satisfied in the past.

In conclusion, the Emergency Order 48 appeared to provide significant rights and benefits to students and parents, and admittedly appeared to put a rather heavy burden on school districts and IEP Teams. The technical advisory issued by the DOE appears to significantly temper many of those rights, benefits and burdens.

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.