Kudos to New Hampshire for being so proactive in legislating on behalf of special education students. New Hampshire has recently passed two new laws that will benefit both students and their parents / guardians. One law requires school districts to assist special education students age 17 and over with registering to vote; the other law creates an Office of the Advocate for Special Education.
HOUSE BILL 1594: AN ACT relative to assistance to certain students with disabilities in registering to vote.
This Act is very short, simple and clear. It requires that whenever a Team meets to review or develop an IEP or 504 accommodation plan for a student who is 17 or older, the Team “shall” (i.e. MUST) discuss voter registration as an appropriate goal to be included in the IEP or 504 Plan. The Team should also discuss when and how voter registration will be accomplished “if appropriate.” The phrase “if appropriate” is always a little concerning, because it can allow for a little too much wiggle room for a responsible party to avoid something it is supposed to do. The final version of this new law was passed on June 17, 2022, and becomes effective August 16, 2022. To see the final version of the Bill, click here.
SENATE BILL 381-FN-A: AN ACT establishing an office of the advocate for special education.
This one is longer and more complicated, but potentially will have a much more far-reaching impact. With or without this new law, if you are the parent or guardian of a special education student, and if you believe that an IEP is not being followed, the first thing you should do is try to get the problem straightened out directly with the Team. Prior to this new law taking effect, if you were unable to get the problem resolved directly with the Team, you had just a couple of options: You could file a complaint with the New Hampshire Department of Education (“DOE”), or you could pursue a due process hearing request, also with the DOE. Even as a special education attorney, those two options are the major arrows I have in my quiver. This is often why issues get resolved once attorneys get involved – nobody on either side wants to litigate, so if you have a good case, and both sides know that litigation is around the corner, both sides have incentive to resolve problems.
The new law gives you a third option. It creates a brand new state office called the Office of the Advocate for Special Education (not to be confused with private education advocates). This will be an independent state agency, not part of the DOE. The Bill states that the new office “shall serve as an advocate, coordinator, and point of contact for those parents, guardians, and caretakers of students with disabilities or students with disabilities when dealing with school districts and the districts’ compliance [with IEP’s and 504 Plans]…” The Governor will appoint the advocate to a 5 year term. RSA 186-C:36. It applies to all students with disabilities in public schools (including public charter schools). RSA 186-C:37.
RSA 186-C:38 lists much more detailed duties and responsibilities:
I. The office of the advocate for special education shall:
(a) Serve as a resource for disability related information and referrals to available programs and services for families of children with disabilities.
(b) Serve as a source of information and referral regarding state and federal laws and regulations governing special education.
(c) Have the discretion to ensure all IEP documents, 504 plans, related supports and services to students with disabilities are properly documented and implemented, and the goals and objectives are being met, and that appropriate related supports and services are being provided.
(d) Have authority to inquire of, investigate, and review all documents from any school, district, or special education department in this state. The advocate shall have access to all IEP documents, 504 plans, related supports and services, treatment plans, progress reports, and report cards of all students with disabilities.
(e) Have the discretion to review all documents relating to IEP documents, 504 plans, related supports and services being provided to students throughout the state, and ensure that proper documentation is being maintained by all schools and districts.
(f) Track metrics of the type of disagreements or complaints between a parent, guardian, or caretaker of the student with disabilities and the district; the types of suspect disabilities, which may uncover an unmet need in the education system; and the types of interventions and supports required by a segment of children.
(g) Ensure protections and safeguards are provided to school staff. To this end, all conversations between teachers, health professionals, and/or any school district personnel and the advocate shall be deemed confidential and not subject to disclosure absent a court order.
(h) Implement measures to track and monitor district achievement, success, and challenges in the implementation of IEPs, 504 plans, and related supports and services.
(i) Establish minimum compliance measures to ensure that copies of all relevant documents which are discussed at any family meeting involving a student receiving services pursuant to this chapter are given to the student’s family at least 5 days in advance of any scheduled meeting at which these documents are to be discussed.
(j) Investigate any retaliatory act alleged or committed by any administrator, school district, state department, or other agency with the appropriate referrals to judicial departments or agencies for action, and any and all complaints filed by a parent, guardian, or caretaker of student with disabilities.
V. All records or files of the advocate shall be readily available to any parent, guardian, or caretaker of a student with disabilities to inspect and/or copy for purposes of any agency or judicial proceeding.RSA 186-C:38
The advocate is required to prepare an annual report for the “governor, the speaker of the house of representatives, the president of the senate, the chairpersons of the house and senate education committees, and the department of education advising on the status of services being provided to students with disabilities….” And if you are tired of thinking that your complaints do not get heard by higher-ups in government, the law also requires, “The annual report shall also include a summary of the parent complaints being filed against schools by families in regard to these services. The complaints shall remain confidential and shall not be made available to the public. For purposes of this section, the complaints are as to the lack of compliance of IEP and 504 plans or the denial of eligibility and/or lack of services.” RSA 186-C:39.
The advocate will also be creating a meeting evaluation form that every school district in New Hampshire will be required to give to parents and guardians following every meeting regarding a student with a disability. The form will allow you to provide feedback regarding your “experience, understanding, and level of satisfaction with the processes involving IEPs, 504 plans, and related supports and services.” RSA 186-C:40.
If you would like to see the full text of this law, you can click 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 https://www.lawbaron.com for more information, or to schedule a phone or video consultation.
The school year is now well underway. It is a sad fact of life that as the school year rolls along, more and more disputes arise between parents and school systems regarding a child’s education. For disputes that cannot be resolved directly between the parents and the school systems, it is sometimes necessary to engage an attorney. When parents call my office, one of the first things I do is to categorize the dispute into one of four major categories (and then further sub categorize within those categories):
- Eligibility and Evaluations. Does the child have a disability? Is the child not making effective progress in regular education due to that disability? Does the child require specially designed instruction or related services in order to access the curriculum? If the answers to these questions are yes, then the child should be eligible for special education services.
- The Team process and IEP services. Who makes up the Team? Do Team meetings take place when and how they are supposed to according to the law? Does the IEP properly reflect the special needs of the child? Do the accommodations and services match what the medical professionals and recommended in the evaluations?
- Placement. Where will services be provided? In-district or out-of-district?
- Discipline. Has a child been removed from their educational placement because of discipline? Has this happened for more than 10 days? Did the school conduct a Manifestation Determination and a Functional Behavioral Assessment?
Once you know where the dispute exists within this special education “lifecycle,” you can then better understand your rights and the school district’s responsibilities under the law.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal disputes. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.