NH Education Freedom Accounts: Some Basics Every New Hampshire Parent Should Understand
In 2021, New Hampshire approved a program to help eligible parents of students pay for various private education expenses. Under the new law, eligible parents can create an Education Freedom Account (“EFA”), into which the state government will deposit a sum of money to be used for private education outside of the public school setting. The annual base amount is approximately $3,500, but can be as high as nearly $8,600 for students who meet certain criteria. What follows is not intended to be a complete reference source for the EFA program; instead, it is intended to provide some of the more important basics that parents should understand. For more thorough information, you should consult with a qualified attorney, or with the New Hampshire Children’s Scholarship Fund, which administers the EFA program.
Who Is Eligible?
To be eligible:
- You must be New Hampshire residents;
- The student must:
- Be between the ages of 5 and 20;
- Be in grade K – 12;
- Not have graduated high school;
- Your household income (total gross income for all adults living in the home) must be no higher than 300% of the federal poverty level. The following chart shows what 300% of the federal poverty limit is for 2021:
| Family Size | Annual Income Limit |
| 2 | $52,260 |
| 3 | $65,880 |
| 4 | $79,500 |
| 5 | $93,120 |
| 6 | $106,740 |
| 7 | $120,360 |
| 8 | $133,980 |
| Add $13,260 for each additional person |
How Much Can You Receive?
If approved for an EFA grant, the base amount is approximately $3,500, but adjusts for inflation (NH Rev Stat § 198:40-a (2021), NH Rev Stat § 198:40-d (2021)). The EFA grant amount might be higher for certain students, as described below (the actual numbers might be even higher due to an inflation adjustment):
- If the student is eligible for the free and reduced price meal program, add on approximately $1,780;
- If the student is an English Language Learner, add on approximately $700;
- If the student is receiving special education, add on approximately $1,900;
- If the student has been determined to be “Not Proficient” on the NH Statewide Assessment 3rd Grade Reading Assessment, add on approximately $700.
Putting this all together, the final grant award could range anywhere from approximately $3,500 to $8,600, depending on the student’s circumstances.
What Can the Grant Be Used For?
EFA funds can be used only for the following educational expenses:
- (a) Tuition and fees at a private school.
- (b) Tuition and fees for non-public online learning programs.
- (c) Tutoring services provided by an individual or a tutoring facility.
- (d) Services contracted for and provided by a district public school, chartered public school, public academy, or independent school, including, but not limited to, individual classes and curricular activities and programs.
- (e) Textbooks, curriculum, or other instructional materials, including, but not limited to, any supplemental materials or associated online instruction required by either a curriculum or an education service provider.
- (f) Computer hardware, Internet connectivity, or other technological services and devices, that are primarily used to help meet an EFA student’s educational needs.
- (g) Educational software and applications.
- (h) School uniforms.
- (i) Fees for nationally standardized assessments, advanced placement examinations, examinations related to college or university admission or awarding of credits and tuition and/or fees for preparatory courses for such exams.
- (j) Tuition and fees for summer education programs and specialized education programs.
- (k) Tuition, fees, instructional materials, and examination fees at a career or technical school.
- (l) Educational services and therapies, including, but not limited to, occupational, behavioral, physical, speech-language, and audiology therapies.
- (m) Tuition and fees at an institution of higher education.
- (n) Fees for transportation paid to a fee-for-service transportation provider for the student to travel to and from an education service provider.
- (o) Any other educational expense approved by the scholarship organization.
Beware the Possible Loss of FAPE
If you are the parent of a special education student, you are probably aware of the school district’s requirement to provide FAPE (Free Appropriate Public Education). This is the foundation for the services that are provided through your child’s IEP (Individualized Education Program). If you unilaterally place (meaning on your own, at your own expense) your child at a private school, the New Hampshire EFA Parent Handbook warns:
Parentally-placed private school children with disabilities shall not be entitled to a FAPE in connection with their enrollment by their parents in a private school, in accordance with 34 C.F.R. 300.148(a) and pursuant to 34 C.F.R. 300.137(a), while participating in the state-funded EFA program.
Children’s Scholarship Fund Education Freedom Account Parent Handbook, p. 8 (2022) (found at https://nh.scholarshipfund.org/wp-content/uploads/2022/09/NHEFAParentHandbook9.7.2022.pdf)
Consider the Cost / Benefit Analysis
Private special education schools can be expensive. You can easily expect the annual cost to be $50,000 – $100,000 or more. You can find the cost for all private special education schools that have been approved by the state of New Hampshire here: https://www.education.nh.gov/sites/g/files/ehbemt326/files/inline-documents/sonh/2021-2022-with-dhhs-rate-included-approved-rates-as-of-6-30-2021.pdf. If you believe your child needs placement at an approved special education school, you should weigh the financial benefit of the EFA versus the benefit – but risk and expense – of trying to get the school district to pay for the placement. The EFA benefit might be just a “drop in the bucket” of the overall expense of such a placement. You still might be better off maintaining the FAPE requirement and trying to obtain a placement paid for by the school district.
Summary
This blog article provides information on some of the more important aspects of the EFA, but there is a lot more that parents need to understand. The EFA is a nice benefit in certain situations for certain families, but might not be appropriate for all eligible families. More information from the state of New Hampshire is available here. It might also be helpful to consult with an education lawyer licensed in New Hampshire.
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.
NH DOE Issues Important Technical Advisory
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.
Gov. Sununu’s Emergency Order #48 Is Stunning – It Impacts EVERY New Hampshire IEP Team
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:
- To make up for services not provided during this period of remote instruction and support;
- To make up for student regression; or
- 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
NH Emer. Or. 48 (May 26, 2020)
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.
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.
New Hampshire, Coronavirus (COVID-19) and School Law – Part 2
Introduction
In the prior installment of this series, we started to look at how COVID-19 has impacted public school education in New Hampshire. In particular, we looked at a chronology of the key Executive and Emergency Orders issued by Governor Sununu, as well as the key pieces of guidance issued by the federal and state Departments of Education. In this installment, we will look at some of the issues regarding the provision of special education services in light of the COVID-19 emergency.
Special Education and COVID-19
Do special education services need to be remote? Not necessarily.
Based on Governor Sununu’s Emergency Orders, one would think that special education services, if they are going to be provided at all, would need to be remote. For example, Emergency Order #1 on March 15 ordered all public school districts to transition to remote instruction, and all public schools to be closed to students. Emergency Order #17 on March 26 ordered all non-essential businesses to close their physical locations, and all citizens to stay in their residences. Emergency Order #19 on March 27 extended the remote instruction requirement through May 4. Emergency Order #32 on April 16 extended the remote instruction requirement through the end of the school year.
On the other hand, there is an interesting exception listed in Emergency Order #17. Paragraph 5 states, “This Order shall not apply to any K-12 schools within this State.” On March 30, 2020, the New Hampshire Department of Education (“NH DOE”) issued Guidance specific to Emergency Orders #16 and #17. See Dept. of Educ. Guidance Relating to Emer. Orders #16 and #17 (Mar. 30, 2020). The NH DOE specifically referred to the exception listed in Paragraph 5. This Guidance highlighted several interesting points:
- There should not be “more than 10 individuals in a single enclosed space, i.e., a room with four walls….” There can be more than 10 individuals in a building. Social distancing should be encouraged. Staff should be allowed to work from home where possible.
- Special education services that require physical contact, such physical therapy, or that require being within six feet of a student, are considered “essential functions… [and are] consistent with the Orders.” My reading of this is that such services are permissible.
- Providing and dropping off meals is considered an essential function.
- Parents are permitted to travel to pick up meals or educational materials, but should observe social distancing guidelines when interacting with others.
- “Social distancing guidelines should be followed whenever possible in performance of essential functions. If an essential function cannot be performed in accordance with social distancing practice, best hygiene practices should be observed (e.g., hand washing) as well as the use of personal protective equipment (PPE) where appropriate (e.g., gloves).”
Three-Tiered Safety Net
New Hampshire has implemented what it refers to as a three-tiered safety net for its special education students. The New Hampshire DOE Guidance for Remote Instruction describes the three tiers as follows:
Special education services may be of a nature that they can be provided in a remote instructional environment.
Special education services may be able to be provided in person, with limited cohort sizes and other preventative measures that allow in person service delivery in our schools or by one of our valued providers in accordance with HHS guidelines. We recognize that many individuals have concerns about being in school facilities or having contact with students. School communities are encouraged to be sensitive to individuals who may have specific health risks or have regular contact with someone who has specific health risks when determining when in person delivery is appropriate.
Finally, if we are simply not able to provide those services, we may need to revert to compensatory services, knowing that this is a last resort option.
Guidance for Extended Emergency Order Remote Instruction in Support, NH Dept. of Educ. (no date).
Compensatory Services
Yes, compensatory services are possible… but, in my opinion, probably unlikely if the school district is being reasonable and trying to find a way to implement services, given the restrictions presented by the COVID-19 emergency. Note the NH DOE’s wording: compensatory services “is a last resort option.” Also keep in mind what compensatory services are. A very basic explanation is that compensatory services are “a discretionary remedy for nonfeasance or misfeasance in connection with a school system’s obligations under the IDEA.” C.G. ex rel. A.S. v. Five Town Community School Dist, 513 F.3d 279, 290 (1st Cir. 2008). What are nonfeasance and misfeasance? Black’s Law Dictionary defines nonfeasance as “[t]he failure to act when a duty to act existed.” Black’s Law Dictionary 1076 (Bryan A. Garner ed., 7th ed., West 1999). Misfeasance is defined as a “lawful act performed in a wrongful manner.” Id. at 1014.
We should also look at guidance provided by the U.S. DOE:
School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment… these exceptional circumstances may affect how all educational and related services and supports are provided… [S]chool districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically…
[D]uring this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.
It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency… Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services – IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.
Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students.
Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, U.S. Dept. of Educ. (Mar. 21, 2020).
Putting this all together – the restrictions caused by COVID-19, the restrictions presented by the Governor’s emergency orders, the guidance offered by the New Hampshire and United States Departments of Education, as well as my own experience and knowledge – I expect that whether a school district will owe compensatory services to a student will depend a great deal on how reasonable and easy to work with the district is during this crisis. A school district that is responsive to parents, tries to find ways to implement services required under the IEP, listens to parent concerns and responds appropriately, and is generally reasonable, will likely be viewed as a district that truly tried to offer FAPE; a school district that is unresponsive, unreasonable, does not offer services, or offers services that are wholly inadequate compared to what was possible under the circumstances, will likely be viewed as a school district that denied FAPE and owes compensatory services.
Similarly, parents need to be reasonable. They need to understand that it might not be possible to implement IEP services as agreed to in the IEP. It also might not be physically possible to make up for every minute of a services that was missed due to the COVID-19 emergency. Therefore, parents need to be open to different approaches and options.
If there is a dispute that goes to a due process hearing, hearing officers will apply the laws to the facts to settle the dispute and make decisions. However, they will also look to see who was reasonable or unreasonable. You do not want to be the party going into a due process hearing looking like the party that was overly demanding and unreasonable during an emergency.
Summary of Part 2
In Part 1 of this blog series, we looked at key orders and guidance documents pertaining to COVID-19 and New Hampshire education law. In Part 2, we looked at special education in New Hampshire during the COVID-19 emergency. Coming up, we will look at implementation issues and other challenges facing New Hampshire school districts and parents as they try to ensure that education continues while health risks are minimized in light of the COVID-19 emergency.
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.
New Hampshire, Coronavirus (COVID-19) and School Law – Part 1
Introduction
School districts all over the country have been grappling with educational, technical and legal challenges as they have been forced to transition from in-person to remote instruction due to the coronavirus (COVID-19). Each school district has been responsible for implementing its own version of remote learning, based on guidance provided by the United States Department of Education, as well as each state’s Department of Education (DOE).
State and school district responses to the remote learning challenge have run the gamut from openly refusing to provide remote services to openly embracing the changes. New Hampshire appears to fit into the latter description. The New Hampshire DOE immediately jumped on the challenge and helped school districts within the state give a good faith effort to meet the challenge. As Vice President Mike Pence said, New Hampshire is “setting the pace.” See, e.g., https://www.unionleader.com/news/education/vp-pence-says-nh-is-setting-the-pace-on-remote-learning/article_b496dda9-a48e-5b7d-b9b8-01cfd8891bbf.html. What we do not know yet is whether the actual execution has been as good as the plans. New Hampshire parents: what has been your experience?
Since the beginning of March, the amount of information issued by federal and state authorities has been almost overwhelming. There have been fact sheets, Q&A sheets, guidance sheets, letters to education leaders, executive orders, webinars, trainings, video conferences and audio conferences. Let’s look at some of the key legal points from all of this information.
Chronology of Guidance and Orders
COVID-19 started in China in December 2019, but by March it had spread to the United States with such intensity that it became both a state and national emergency.
- March 12, 2020 – The federal Department of Education created a COVID-19 Q&A document to provide guidance to school districts, parents and other stakeholders. Questions and Answers on Providing Services to Children with Disabilities during the Coronovirus Disease 2019 Outbreak, U.S. Dept of Educ. (Mar. 12, 2020). This Q&A, like most guidance documents, did not change any laws or create any rights. Guidance documents simply interpret existing laws so that parties can make reasonable decisions about how to implement the laws. Among the guidance provided in this Q&A was that if a school district closes its schools and does not provide any educational services to the general student population, then the district would not be required to provide services to students with disabilities. On the other hand, if a school district “continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.” FAPE stands for Free Appropriate Public Education, and is one of the basic requirements of special education law. The U.S. DOE’s wording created confusion among some states and school districts, to the point that some districts (outside of NH, as far as I know) openly stated that they would not be providing formal remote education, because they were afraid of violating FAPE requirements. As you will see below, New Hampshire officials stepped in quickly to clarify the need to continue formal remote instruction, and to provide school districts with appropriate support. The U.S. DOE also issued clarifying guidance on March 21, 2020, discussed below.
- March 12, 2020 – The New Hampshire Board of Education implemented an emergency amendment to Education regulation Ed 306.18(a)(7), regarding remote instruction.
- The pre-emergency version of Ed 306.18(a)(7), implemented in 2014, authorized, but did not require, school districts to submit a plan to the Commissioner of Education, outlining the district’s plan to conduct remote instruction “for up to 5 days per year when the school has been closed due to inclement weather or other emergency. The plan shall include procedures for participation by all students. Academic work shall be equivalent in effort and rigor to typical classroom work. There shall be an assessment of all student work for the day. At least 80 percent of students shall participate for the day to count as a school day.”
- The emergency amendment to Ed 306.18(a)(7) authorizes school districts to conduct instruction remotely. It also requires districts to “create a plan that shall include procedures for participation by all students. Academic work shall be equivalent in effort and rigor to typical classroom work. There shall be an assessment of all student work for the day.”
- March 13, 2020 – Governor Sununu issued an Executive Order related to COVID-19, in which he declared a state of emergency. NH Exec. Or. 2020-04 (Mar. 13, 2020). Although the contents of the order are very important, there are just a few education-related items that need to be highlighted here:
- Section 13: Directs the NH Department of Education to “provide updated and specific guidance relating to preventing and mitigating COVID-19….”
- Section 14: Suspends all school sponsored out-of-state travel for public school students and teachers.
- Section 18: States that additional “orders, directives, rules and regulations” might be forthcoming.
- March 15, 2020 – Governor Sununu issued his first Emergency Order, pursuant to his March 13 Executive Order. NH Emer. Or. 1 (March 15, 2020). In this Emergency Order, the Governor:
- Ordered all NH public K-12 school districts to transition to remote instruction and support for three weeks, between Monday, March 16, 2020 and Friday, April 3, 2020.
- Ordered each school district to “develop a temporary remote instruction and support plan….”
- Ordered that all public K-12 schools be closed to students starting on March 16, 2020, to allow each school district to develop and transition to remote instruction and support.
- Ordered that each school district begin providing temporary remote instruction and support to all students no later than Monday, March 23, 2020, and continuing through Friday, April 3, 2020.
- Ordered the Department Of Education to provide assistance and guidance to school districts in the development of remote instruction and support.
- March 21, 2020 – The U.S. Department of Education issued additional guidance in the form of a “Supplemental Fact Sheet.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, U.S. Dept. of Educ. (Mar. 21, 2020).The U.S. DOE stated that federal law should not be interpreted as an excuse for not providing educational programs through remote instruction. The U.S. DOE also clarified that school districts are required to provide FAPE to students with disabilities, while also protecting the health and safety of the students and their teachers and service providers. FAPE might be possible through distance instruction virtually, online, or telephonically. How FAPE is provided might need to change during this emergency. If services cannot be provided, IEP Teams “must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” What I believe is the most important statement in this document concerns collaboration: “The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities.” Putting this all together, my view of the key points of this guidance are as follows:
- School districts are required to provide FAPE;
- During this emergency, FAPE might look different than what the parties would normally deem acceptable;
- Schools and parents need to be flexible, open to new approaches, and work together to find ways to provide services;
- If FAPE cannot be provided, compensatory services later might be appropriate.
- March 26, 2020 – Governor Sununu issued Emergency Order #17, pursuant to his March 13 Executive Order. NH Emer. Or. 17 (Mar. 26, 2020). In this Order, the Governor required that all non-essential businesses close their physical workplaces and facilities at least until May 4, 2020. He also ordered all New Hampshire citizens to stay in their residences, with limited exceptions. Interestingly, Section 5 of this Order states that the Order “shall not apply to any K–12 schools within this State.” Sections 6 and 7 also exclude state and local governments, as well as houses of worship.
- March 27, 2020 – Governor Sununu issued Emergency Order #19, pursuant to his March 13 Executive Order. NH Emer. Or. 19 (Mar. 27, 2020). In this Emergency Order, the Governor extended the public school requirement for remote instruction through Monday, May 4, 2020.
- Sometime after Governor Sununu issued Emergency Order #19, the NH DOE issued an undated guidance document based on that Emergency Order, entitled “Guidance for Extended Emergency Order Remote Instruction in Support.” Note that this guidance document incorrectly states that Emergency Order 17 extended remote instruction through May 4; it was actually Emergency Order 19 that extended remote instruction through May 4. This Guidance is a detailed, 6-page document dealing with:
- Managing Expectations – Teachers need to hold high expectations, but be flexible;
- Planning and Advisory – Teachers should allow time for preparing instructional materials, collaborating with colleagues, and engaging individually with students;
- Student Screen Time – Remote learning does not necessarily mean that students are always online. Teachers need to be mindful to avoid too much screen time. They need to develop other creative instructional opportunities with resources that are at hand;
- Asynchronous and Blended Instruction – Teachers need to be aware that students, parents and families are dealing with multiple, simultaneous responsibilities and challenges as a result of the COVID-19 emergency. Remote instruction and support is just one of the many responsibilities and challenges. Teachers and administrators need to be flexible with students and families;
- Special Education/ESOL – Remote support will mean finding ways to be creative to support students with IEPs and non-English speakers;
- Healthy Habits – Everyone needs to be aware of how disruptive the current circumstances are, and how important it is that everybody take care of themselves and others;
- Mandatory Reporting – All adults in New Hampshire are mandatory reporters if they suspect child abuse or neglect. That responsibility has not changed;
- Instruction Hours – New Hampshire law requires that schools offer 945 hours of instructional time for elementary schools, and 990 hours of instructional time for middle/high schools. Although this is not changed, the state Board of Education or the Commissioner of Education is authorized to reduce the amount of instructional time. However, New Hampshire is being very lenient in what it considers instructional time. “During this remote instruction and support period, any day for which remote instruction is offered is considered an instructional day. In addition, the period from March 16 – 20, which for some districts was a preparation period for remote instruction and support, also is considered as instructional days. Districts that believe they may have difficulty meeting the statutory instructional time, are encouraged to reach out to the department to evaluate the individual circumstances and determine if a waiver may be required. “
- Attendance – How attendance is recorded is up to each school district. New Hampshire offers “a great deal of flexibility around attendance.” Simply engaging instructional material can be the basis for participation and attendance. “For some districts or classes, that may mean a daily check-in, for others it may occur less frequently. As a general rule, the department sees frequent, quick check ins with students an effective approach to monitor engagement.” Even with this flexibility, there might still be truancy, defined by RSA 189:35 as “Ten half days of unexcused absence.” If a school district believes a student is truant, the district should engage with the district’s truant officer.
- Sometime after Governor Sununu issued Emergency Order #19, the NH DOE issued an undated guidance document based on that Emergency Order, entitled “Guidance for Extended Emergency Order Remote Instruction in Support.” Note that this guidance document incorrectly states that Emergency Order 17 extended remote instruction through May 4; it was actually Emergency Order 19 that extended remote instruction through May 4. This Guidance is a detailed, 6-page document dealing with:
- April 16, 2020 – Governor Sununu issued Emergency Order #32, pursuant to his March 13 Executive Order. NH Emer. Or. 32 (Apr. 16, 2020). In this Emergency Order, the Governor extended the public school requirement for remote instruction through the end of each school district’s school year.
Summary of Part 1
That completes our brief introduction and summary of the key orders and guidance documents pertaining to COVID-19 and New Hampshire education law. However, we have only touched the surface of all of the information promulgated by national, state and local authorities. New Hampshire school districts must ensure that education takes place remotely. School districts and parents must be willing to work collaboratively, be flexible, and understand that an acceptable and appropriate education, under the circumstances, might look very different than what it would have looked like when children were physically in school each day. In Part 2, we will dig into more detail about special education issues, technical and implementation issues, and other challenges facing New Hampshire school districts and parents as they try to ensure that education continues while health risks are minimized in light of the COVID-19 emergency.
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.
Doucette: An Important 1st Circuit Decision Regarding “Exhaustion”
In the recent case of Doucette v. Georgetown Pub. Sch., No. 18-1160 (1st Cir. 2019), the 1st Circuit Court of Appeals issued a very important decision regarding the concept of “exhaustion.” Previously, the rule of thumb for special education attorneys was that if a case involved Section 504 or ADA claims by a student against a school district, the case needed to be heard by the Bureau of Special Education Appelas (“BSEA”) (or in New Hampshire, the Department of Education (“DOE”)) before it could be heard in federal court. This was true, even if the BSEA / DOE did not have the authority to grant the requested remedy, such as damages. Doucette applied and extended the reasoning outlined by the U.S. Supreme Court in Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 197 L.Ed.2d 46 (2017).
[Note: For purposes of this blog article, I will be referring to the BSEA. However, since both Massachusetts and New Hampshire are part of the 1st Circuit, everything discussed applies to both the Massachusetts BSEA and the New Hampshire DOE.]
Concept of Exhaustion
If you are the parent of a special education child, you probably know all about exhaustion, but more from the perspective of physical or emotional fatigue. The legal concept of exhaustion is quite different. In the law, exhaustion is short for “exhaustion of administrative remedies.” Black’s Law Dictionary defines “exhaustion of remedies” as:
The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available.
Black’s Law Dictionary, 594 (Bryan A. Garner ed., 7th ed., West 1999)
The Individuals with Disabilities Education Act (“IDEA”) is the federal set of laws governing special education. 20 U.S.C. § 1400 et seq. IDEA does contain such an exhaustion requirement:
Nothing in [the IDEA] shall be construed to restrict or limit the rights,
Fry, 137 S.Ct. at 750, quoting 20 U.S.C. § 1415(l)
procedures, and remedies available under the Constitution, the [ADA], title V of the Rehabilitation Act [including § 504 ], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].
In other words, if you are claiming that the school district owes your child something because the district violated the ADA or Section 504, and if you could also make a similar claim and get similar relief under IDEA, you need to start your legal proceedings at the BSEA / DOE. But what if the relief you are seeking is available under the ADA / 504, but is not available under IDEA – for example, financial damages (hearing officers are not authorized to award damages)? The case law in the First Circuit has generally held that you still need to start at the BSEA / DOE, if for no other reason than just to establish the administrative record for the benefit of the federal court.
Issues Addressed
- If the gravamen of a Rehabilitation Act (Section 504) claim does not involve the denial of a Free Appropriate Public Education (“FAPE”), does the plaintiff still need to exhaust administrative remedies through the BSEA before proceeding to federal court?
- If pursuing a case at the BSEA would be futile, must the parents still exhaust their administrative remedies at the BSEA before proceeding to federal court?
Facts
- The student, B.D., had a rare genetic disorder which caused numerous physical and developmental disabilities, and increased the risk of sudden unexpected death correlated with seizure activity.
- B.D. attended elementary school in Georgetown between the ages of three and six (July 2009 through August 2012). He was on an IEP. Parents and school district disagreed about his services.
- Parents temporarily removed B.D. from school in May 2010, and filed for hearing at the BSEA in July 2010. Parents sought an out-of-district placement. The BSEA Hearing Officer agreed that the IEP was inadequate, but did not order a new placement.
- In the fall of 2011, B.D. began working with a service dog to help him with anxiety and balance, and to alert caretakers of any impending seizures. In November 2011, Parents requested that the school district permit the dog at school as a disability accommodation. The school district initially refused outright, but then offered access to the service animal if the parents agreed to a school policy regarding the dog’s handling. The parents refused that offer, and claimed that the school district violated the Americans with Disabilities Act (“ADA”). The school district then ordered a behavioral assessment to take place during the following school year to determine whether his IEP should be amended to include a service dog.
- J.B. Comment: It is unclear from the decision what the school district’s policy was, or why the parents believed that the policy violated the ADA. Footnote 8 of the decision provides some foreshadowing by stating that this issue “will undoubtedly be an important issue to the future viability of the Doucettes’ section 504 claim, but it is not an issue in this appeal.”
- J.B. Comment: It is not clear from the decision how much time elapsed from November 2011 until the school district ordered a behavioral assessment, and then from the time that the assessment was ordered until the following school year when the district actually intended for the assessment to occur.
- In the summer of 2012, when B.D. was participating in the school district’s ESY program (i.e. summer school), he experienced a tonic-clonic seizure for over 20 minutes and required hospitalization. Parents demanded an immediate amendment to the IEP to grant him access to a service dog. This request was denied, but the district offered to allow the dog if the mother would act as the dog’s handler. After the denial, and into September 2012, B.D. suffered four more seizures
- J.B. Comment: An argument can be made that since the parents were requesting an amendment to the IEP, this became a FAPE issue. On the other hand, they were not the ones who initially requested an update to the IEP – it was the school district that responded to the Parents’ initial request for a service dog accommodation by suggesting a possible amendment to the IEP. Basically, the school district drew the Parents into a FAPE disagreement.
- B.D. continued to have seizures and hospitalizations. The parents eventually removed B.D. from school and again requested an alternative school placement. B.D.’s doctor wrote a letter expressing concern about the school district’s ability to handle B.D.’s health and safety, and recommended that B.D. be kept out of school until a safe placement could be identified. The school district wrote back that any extended absences would be considered truancy.
- In September 2012, Parents relented, and sent B.D. back to school. However, he had yet another tonic-clonic seizure, requiring hospitalization. Finally, the school district agreed to evaluate out-of-district placements, and in fact agreed to a new placement. B.D. did not experience any further seizures following removal from the school district.
- In 2015, the Doucettes filed suit in U.S. District Court alleging (1) state law tort claims, as well as federal claims under (2) Section 504 of the Rehabilitation Act and (3) 42 USC §1983.
- The District Court ruled against the parents on their federal law claims, stating that the parents failed to exhaust the IDEA administrative remedies. The court also declined to exercise pendent jurisdiction over the state law claims.
Summary of Key Regulations and Statutes Referenced in the Decision
- Section 504 of the Rehabilitation Act (29 USC §794): Section 504 requires public entities (including, but not limited to schools) to make reasonable modifications to their existing practices in order to accommodate disabled persons. Such modifications include support services. Alexander v. Choate, 469 US 287, 299 – 300 (1985). “IDEA guarantees individually tailored educational services, while Title II and § 504 promise non-discriminatory access to public institutions.” Fry, 137 S. Ct. at 756.
- Section 1983: This applies to everyone within the United States (not just disabled individuals), protecting everybody from deprivation of any federal rights by anyone acting under state law.
- Exhaustion Requirement: This concept is described above. The U.S. Supreme Court, in its Fry decision, provided the following guidance regarding exhaustion:
- The key to determining whether exhaustion at the state administrative level must occur is whether the gravamen of the claim concerns FAPE. If it does concern FAPE, then exhaustion must occur at the state administrative level before a claim can be made in federal court; if it does not concern FAPE, then the case can proceed directly to federal court without exhaustion at the state administrative level. Fry 137 S. Ct. at 754.
- The Supreme Court provided two “clues” to determine whether the case is related to FAPE:
- “could the plaintiff have brought essentially the same claim if the alleged conduct that occurred at a public facility that was not school?” and
- “could an adult at the school… Have pressed essentially the same grievance?”. Id. at 756 – 757.
Doucette § 504 Analysis
Regarding the 504 claim, the Doucette court looked to the Fry “clues” to determine that the 504 claim was not related to FAPE, and therefore exhaustion was not required. First, the the court stated that the plaintiff could have brought essentially the same claim against any public facility – not just a school. For example, if a movie theater, restaurant, hotel, or store failed to accommodate somebody by not allowing a service dog, that facility would be subject to a similar claim in federal court, without the plaintiff having to exhaust claims at the state administrative level. Doucette at 17 – 19. This reasoning is similar to Fry, where the “complaint alleges only disability-based discrimination, without making any reference to the adequacy of the special education services…” Fry at 137 S. Ct. at 758.
Doucette also utilized the second clue from Fry. Specifically, the court stated that a nonstudent (e.g. a teacher) could bring essentially the same claim against the school district if they were denied use of a service dog. Doucette p. 18.
The majority decision in Doucette also addressed several other arguments. One argument was that because the Doucettes previously engaged in a BSEA due process hearing regarding FAPE in 2010, the current dispute regarding the service dog must be related and must also concern FAPE. The court disagreed. The majority pointed out that the Doucettes did not raise the service dog issue until November 2011, well after the BSEA due process decision was issued. Id. at 20 – 21.
Another argument addressed by the court was that because the Doucettes eventually requested that B.D.’s IEP be updated to include reference to a service animal, the gravamen of their complaint concerned FAPE (and therefore exhaustion would be required). The court disagreed. The majority pointed out that the Doucettes initially requested the service dog without reference to the IEP. It was the school district that responded to the Doucette’s service dog request by ordering an assessment to take place to determine whether the IEP should be updated. Id. at 22.
Regarding the pure 504 vs. FAPE discussion, the majority pointed out that a student at risk of seizures who needs a service dog in school is not much different, legally, than a wheelchair-bound student who requires ramps in order to get into the school building. Neither case concerns educational services; both cases concern access. Id. at 23.
The mere fact that a student might require both accommodations under Section 504 and educational services under IDEA does not mean that all claims related to the student and the school must be exhausted at the state administrative level. To have such a requirement would discriminate against disabled students. Id. at 24 – 25.
Plain and simple, the 504 claim concerned a public institution’s denial of nondiscriminatory access to an individual by failing to accommodate use of a service dog, and the harm (i.e. seizures) that resulted from that denial; the 504 claim did not concern the school district’s obligation to provide a particular education program (i.e. FAPE). Doucette at 16 – 17.
Doucette § 1983 Analysis
Unlike the § 504 claim, the §1983 claim was very much related to FAPE. Here, the parents made a claim that the school district had notice that the placement was inappropriate, and that the district’s refusal to allow a different placement, and subsequent threatening of truancy, “amounted to ‘deliberate indifference in severe, pervasive disregard for [the] safety and well-being [of] B.D.’ and that, as a result, B.D. ‘suffer[ed] great physical and emotional harm,’ including ‘five [ ] life-threatening tonic-clonic seizures.’” Doucette at pp. 26 – 27. The Doucette court applied the Fry clues to conclude that FAPE was very much an issue. Doucette at 27.
Nonetheless, the court still ruled that the plaintiffs were not required to file at the state administrative level for several reasons:
1. Exhaustion was met. The Doucettes had a due process hearing in 2010. In July 2012, they again requested an alternative placement. They again brought the dispute to the attention of the local school district. They eventually received the relief they were looking for. However, the § 1983 claim did not concern whether the placement was appropriate or not; it concerned the harm that B.D. suffered as a result of the school district’s delay in providing the relief. Doucette at pp. 30 – 31.
2. Exhaustion was not necessarily even required. The Doucettes were seeking relief that was not available to them under IDEA – money damages for physical or emotional harm. Therefore, “§1415 (l) does not appear to require exhaustion of the Doucette’s constitutional claim…” Id. at 32.
3. Pursuing a claim at the state administrative level would have been futile. Hearing officers do not have the authority to provide the relief that the Doucettes were seeking. They are not authorized to award money damages for physical or emotional harm. Id. at 32. Hearing officers are limited to providing equitable relief in the form of educational services, compensatory services, and reimbursement for education -related expenses. Id. at 34.
The court acknowledged that FAPE-based claims can benefit from the administrative process, because such a hearing will develop the evidentiary record based on the specialized knowledge of education professionals. However, the court stated that such a record had already been developed through the 2010 due process hearing, as well as through the Doucette’s 2012 pursuit of an educational placement.
JB Comment: On the one hand, this particular argument seems ripe for appeal. Part of the record that the court refers to was not developed under oath, or in front of the hearing officer. The court is simply referring to documents which often become evidence that a hearing officer will weigh in a due process hearing. On the other hand, even if the court will benefit from further litigation in order to develop the evidentiary record, this one issue alone does not seem to be vital enough to require the cost and delay of further litigation at the state level. In fact, an alternative argument could be made that engaging in such litigation, knowing that a hearing officer does not have the authority to award the relief requested, amounts to frivolous litigation that only serves to increase the cost to both sides.
Summary
The Doucette decision is very important for special education cases which involve non-FAPE matters in the 1st Circuit. If an attorney representing a parent is considering whether to file a claim in federal court before litigating the issue at the BSEA / DOE, the attorney should first apply and analyze the clues provided by the Supreme Court in Fry, and applied in the 1st Circuit in Doucette.
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, or call 781-209-1166 for more information.
Recent Changes to the NH Special Education Regulations
The joy of a snow day… I get a chance to catch up on a blog posting that I have been meaning to write for a long time. Last June, 2017, New Hampshire implemented a significant number of changes to its regulations related to special education. The changes range from correcting minor typos and grammatical changes, to major changes. After comparing the current and prior regs, I wanted to highlight some of what I believe are the more important changes. This list is not intended to be a complete list of the changes. These changes are all specific to New Hampshire:
- Once you have been involved with the special education system for a while, you learn that the school district is supposed to evaluate a child initially as part of the special education eligibility consideration process, as well as at least every three years thereafter. However, the evaluation process was never defined. It is now. The following new reg has been added:
“Evaluation process” means the completion of initial evaluations, reevaluations and assessments, a written summary report, and a meeting of the IEP team to review the results of the evaluations and assessments. When the purpose of the meeting is to determine eligibility for special education and related services, the evaluation process also includes the determination of eligibility. Ed 1102.02(n).
- Related to the evaluation process, the length of time that the school district has to conduct the evaluation has been increased from 45 to 60 days. Ed 1107.01(c), (d). Under the old rules, the allowable time for evaluations could be extended by no more than 15 days, as long as both school district and parents agreed; the new rules now permit an extension of up to 30 days.
- The term “Health Evaluation” has been added and defined. The Health Evaluation is intended to provide the IEP Team with information on the student’s physical condition. Ed 1102.03(b).
- Related to Health Evaluations, the regs now define who is qualified to conduct such an evaluation:
“Professional licensed to provide a health evaluation” means anyone who, under their specific licensing, is qualified to provide a health evaluation. This may include, but is not limited to: a school nurse, a registered nurse, physician, psychiatrist, and naturopathic doctors. Ed 1102.04(m).
- Representatives of DCYF and appointed Guardians ad Litem (GAL) are now specifically defined as potential members of the IEP Team , under the category of “other individuals.” Ed 1103.01(c).
- Team meeting “invitations” are now referred to as “notices.” It is now defined that notices need to include “the purpose, time, location of the meeting and the identification of the participants.” Ed 1103.02(c).
- When a referral was made for special education consideration, it used to be that the Team needed to decide how to proceed regarding the referral within 15 days. That has now been changed to 15 business days. Ed 1106.01(d), (e).
- Home instruction can now be considered an “alternative placement.” Ed 1111.04(a).
- Under the previous regulations, if a school district made a proposal for something in the IEP that it believed was necessary for the child to receive his or her Free and Appropriate Public Education (FAPE), and if the parent refused to consent to that proposal, the school district was required to initiate a due process hearing. Ed 1120.05(f). The reality is that this almost never occurred. That requirement has been removed under the new regs.
- When a complaint is filed with the DOE which results in corrective action being required of the school district, the regs now allow 20 days for an appeal, versus what had been 10 days in the prior regs. The regs also clarify that during the appeal process, any changes that had been ordered as part of the initial complaint decision must be implemented pending the appeal. Ed 1121.04(a).
- Related to the complaint appeal process, the regs previously allowed the Commissioner 20 days to rule on the appeal; that has been shortened to 15 days. Ed 1121.04(b). The regs also now clarify that a further appeal may be made to the NH Supreme Court, or to a NH Superior Court. Ed 1121.04(c).
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.
Written Prior Notice and IEPs
In special education disputes, the question sometimes comes up about how binding statements are from a Written Prior Notice (“WPN”), especially compared to an IEP. What if a key service or description is in the WPN, but not the IEP? Can the two documents be read together, to make them equally enforceable? A case recently decided by the First Circuit Court Of Appeals helps to answer these questions. Ms. M. v. Falmouth Sch. Dept., 847 F.3d 19 (1st Cir. 2017). Even though the case originated in Maine, because both Massachusetts and New Hampshire are also part of the First Circuit, the decision is binding throughout all three states (as well as Rhode Island and Puerto Rico).
Whenever a Team makes a decision to take or not take an action, it is supposed to issue a Written Prior Notice form describing the decision that was made, and why. 20 U.S.C. § 1415(b)(3); 20 U.S.C. § 1415(c)(1) . Federal law and New Hampshire refer to this as a Written Prior Notice or Prior Written Notice; Massachusetts refers this as an N1 Form. Assuming any changes are going to be made, an IEP follows the WPN. The IEP is what parents are used to signing, by accepting, partially accepting, or rejecting the document. The IEP becomes the contract between the parents and the school district, at least in terms of whatever is agreed to in the IEP.
The Ms. M. case concerned a 12-year-old girl (“O.M.”) diagnosed with Down Syndrome and Attention Deficit Hyperactivity Disorder, attending school in Falmouth, Maine. In October 2013, the school district issued a WPN in which the district proposed “the introduction of a structured reading program to [O.M.]’s IEP.” Ms. M., 847 F.3d at 23. After Ms. M. expressed dissatisfaction with various aspects of the district’s proposal, the district, on November 5, 2013, issued a new WPN, in which it “‘proposed’ to provide O.M. with 60 minutes of daily SPIRE instruction.” Id. Ms. M. responded on November 14, 2013 by writing to the school district stating that she had identified several errors in the WPN, and did not believe that SPIRE was appropriate, because according to Ms. M., SPIRE was not a research-based program. Ms. M clarified her position when she wrote that she was “‘NOT in agreement with the proposal to use [SPIRE] for [O.M.]'” Id. The resulting IEP did not identify or discuss SPIRE, and instead stated that Falmouth would provide O.M. with eight hours and forty-five minutes of specially designed instruction in literacy and math per week. On April 17, 2014, Ms. M notified the school district that her daughter would start to receive private tutoring sessions in a different structured reading program called Lindamood Phoneme Sequencing (“LiPS”). On May 1, 2014, at a Team meeting, Falmouth notified Ms. M that they were declining her request to provide O.M. with LiPS instruction, and again agreed to provide her with SPIRE instead, though not until the following school year. Id. at 23 – 24.
In June 2014, Ms. M filed for due process. Ms. M., 847 F.3d at 24. The hearing officer ruled in Ms. M.’s favor, determining that the contents of the October 31st WPN were part of the IEP. The hearing officer also determined that since the combined documents called for SPIRE instruction, Falmouth had violated the IEP by not providing her with such instruction. However, the hearing officer also ruled that the failure was merely a procedural violation and had not harmed O.M. educationally, and therefore FAPE was not denied. Id. at 24 – 25.
Ms. M. then appealed to federal court. Ms. M., 847 F.3d at 25. A magistrate judge supported the findings of the hearing officer. The case then proceeded to district court, which disagreed with the magistrate judge and hearing officer in terms of whether the violation was substantive or merely procedural. The court found that the violation was material, and entered a judgment of $4,111.25 in favor of Ms. M., reflecting the cost of the LiPS tutoring for 3 1/2 months. Id.
The case then proceeded to the First Circuit Court of Appeals, which reversed the lower courts. The First Circuit agreed with Falmouth’s argument that “SPIRE… was never part of O.M.’s IEP because the IEP team only mentioned its use in the Written Prior Notice generated after the October 31st meeting, a document which proposed, but did not promise, that the School Department would provide specific educational programs to O.M.” Ms. M. at 25. The court stated that although the WPN might contain more specific terms than the IEP, those terms are intended as proposals, and are “not binding.” Id. at 28.
The court did identify an exception that would allow the WPN to be read with some binding authority. Specifically, if a term in the IEP is ambiguous, the WPN can be referenced for help clarifying the ambiguity. Ms. M. at 28.
As one last aside, it is valuable to point out how important it is for both parents and school districts to be reasonable when dealing with each other. In this case, the parent told the school district that she was opposed to SPIRE, yet then proceeded to bring a due process case for the district’s failure to implement SPIRE, even though SPIRE was never in an IEP. Regardless of whether the WPN and IEP could be read together to create a binding set of services, it does not seem reasonable for a parent to bring a due process case, trying to fault the district for failing to implement the program to which the parent was opposed. That is litigation that should never occur.
In summary, based on the Ms. M. case, parents in the First Circuit (including Massachusetts and New Hampshire) should not assume that a WPN is binding, or that the WPN should be read together with an IEP. The WPN should be looked as a set of proposals that are not binding until the details are in the IEP, and the IEP is agreed to by both district and parents. If parents do not see what they are looking for in an IEP, the first step should be to ask the school district to correct the error. If the district refuses, then the parent should document their position, which would typically be done through a rejection (partial or full, depending on the circumstances).
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.
Specifying Teaching Methodology in an IEP
Introduction
Can / should / must a special education Team specify a teaching methodology in an IEP? More specifically, if a student with Autism Spectrum Disorder (ASD) requires Applied Behavior Analysis and Discrete Trial Training (ABA / DTT) in order to make effective progress, should the Team include the ABA/DTT methodology in the IEP? Must the Team include ABA/DTT in the IEP?
Legal Background
The very definition of the term Special Education would seem to indicate that IEP’s can and should name specific methodologies. Both federal and New Hampshire law define “Special Education” as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability….” 34 CFR 300.39(a)(1); Ed 1102.05(c). Specially Designed Instruction is then defined as:
(3) Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction–
(i) To address the unique needs of the child that result from the child’s disability…
34 CFR 300.39(b)(3); Ed 1102.05(c). In Massachusetts, the definition is slightly different: “Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.” 603 CMR 28.02(20).
Guidance provided by the federal Department of Education states, “if an IEP Team determines that specific instructional methods are necessary for the child to receive FAPE, the instructional methods may be addressed in the IEP.” 71 FR 46665 (2006). On the other hand, that same guidance also states, “There is nothing in the Act that requires an IEP to include specific instructional methodologies… The Department’s longstanding position on including instructional methodologies in a child’s IEP is that it is an IEP Team’s decision.”
But what if the Team makes the wrong decision? What if a child requires a specific methodology in order obtain a meaningful benefit from their educational program? Surely the courts can help, right? Not necessarily. The U.S. Supreme Court has stated that
[C]ourts must be careful to avoid imposing their view of preferable educational methods upon the States.[29] The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.
Board of Educ. v. Rowley, 458 U.S. 176 (1982). So, parents should not expect a court to overrule methodology choices made by IEP Teams.
Luckily for parents, though, the administrative agencies in each state which adjudicate special education matters are not part of the state or federal court systems. They are, in fact, administrative bodies of state governments. The difference might seem minor, but it is, in fact, very important. Notice that Rowley does not leave the methodology decision just to the IEP Team (i.e. the “local educational agenc[y]). Instead, it leaves the decision to “state and local educational agencies…” Furthermore, the decision must be made “in cooperation with the parents or guardian of the child.” In New Hampshire, special education disputes are not initially adjudicated in the court systems; they are adjudicated by the New Hampshire Department of Education. Similarly, in Massachusetts, the administrative body that hears special education disputes is called the Bureau of Special Education Appeals (BSEA), which is part of the Massachusetts Department of Administrative Law Appeals (DALA).
Courts have even recognized the difference in knowledge and expertise between the state administrative law judges / hearing officers and judges within the state or federal court systems. For example, in Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), it was stated,
[T]he ALJ is a representative of the state presumed to have both the educational expertise and the ability to resolve questions of educational methodology that the federal courts do not have. While the district court always is required to give due deference to administrative findings in an IDEA case, even greater weight is due to an ALJ’s determinations on matters for which educational expertise is relevant.
Id. at 865.
New Hampshire Case Law
I recently litigated a case in New Hampshire which dealt with the issue of whether an IEP of a student on the autism spectrum should be updated to reflect the need for the ABA/DTT methodology. Student v. School District, IDPH-FY-16-02-020 (NH Dept. of Educ. May 9, 2016). The result was very positive for the parents. In this case, it was well documented through private evaluations and reports that a kindergarten student with very limited verbal skills required ABA/DTT in order to learn. The student’s neuropsychological evaluation stated that the student required a minimum of 25 to 30 hours of individualized, ABA/discreet trial based therapy per week, with placement in a full-time, full-year program utilizing 1:1 ABA, with staff being ABA-trained and BCBA supervised.
The school district even recognized the importance of ABA/DTT for the student. For example, Team meeting notes documented that the student was “rapidly gaining skills during ABA in a structured one-on-one setting.” A Written Prior Notice documented, “The team recognizes that [Student] has benefited from discrete trial instruction by a trained therapist with oversight by a BCBA… [Student] is acquiring skills rapidly in a one-to-one setting using ABA and Discreet Trial Methodologies.” Perhaps most importantly, the district’s program actually included ABA/DTT, as well as other methodologies.
Despite such clear evidence, and even admission by the school district, about the need for Applied Behavior Analysis / Discrete Trial Training, the school district refused to commit to any ABA/DTT services in the IEP Service Delivery Grid. In order to ensure that the student received the required services, the parents kept the student at home, arranged for full-time private ABA/DTT services at home, and eventually filed for a due process hearing.
The hearing officer differentiated this case from other methodology cases by clarifying that this was not a dispute about the need for ABA/DTT. The district admitted that the student needed ABA/DTT, and even admitted that the program included some ABA/DTT. Instead, this was a case about the Team refusing to document the need for ABA/DTT within the IEP. In his decision, the hearing officer stated:
[T]he dispute here is more about the school district’s reluctance to put specific language in an IEP about a service and a particular methodology that the Team agreed would be provided. The school members of the IEP team did not want to include any specific amount of ABA/DTT services in the IEP because they did not want to “tie their hands” and it was “not good practice” to include methodology in an IEP. That led to uncertainty about how much and what kind of special education services the student would receive.
While the cases say that methodology does not have to be included, they do not say that it cannot be included. There is nothing in the law that would prohibit the school from including a methodology in an IEP. Methodology is part of the definition of special education and specialized instruction in the IDEA and its regulations, 34 CFR § 300.30(b)(3), and it seems that it should be part of the listing of the amounts of special education services a student will receive when part of those services will knowingly be from some method like ABA/DTT… [I]f a team agrees that a student requires ABA/DTT services, which it did here, those services should be included in the IEP.
Id. The Massachusetts Bureau of Special Education Appeals (BSEA) has established similar case law. For example, in the case In Re: Middleborough Public Schools, 9 MSER 244 (2003), the school district raised similar arguments as the NH case just described. “The School argues that this is purely a question of methodology, that the choice of educational methodologies belongs solely to the school, and cannot be dictated by Parents or a hearing officer.” Id. The hearing officer stated that the school district was taking a general principle and carrying it too far. While it is true that courts generally defer to educators on the issue of methodology, this general principle does not apply when the IEP itself is inappropriate. Interestingly, the hearing officer got even more specific regarding ABA/DTT methodology, when she stated,
Additionally, courts seem to address ABA/DTT differently from other methodology disputes. In numerous cases courts have held that there is a “window of opportunity” for children with PDD/autism spectrum disorders to develop language and behavioral skills. If the evidence—including expert testimony– shows that ABA/DTT is necessary for FAPE during that window, courts have ordered schools to provide it. See, e.g., T.H. v. Palatine , supra.
Summary
Educators, collaborating with parents and guardians, generally determine methodology. If a specific methodology is necessary for a student to receive a Free and Appropriate Public Education (FAPE), that methodology should – and I would argue must – be included in the IEP. Courts generally will not overrule the methodology decisions of school districts. However, the administrative bodies that adjudicate special education cases are not part of the court system; they are considered part of the “state educational agency” as described in Rowley. Hearing officers have expertise in educational matters, and while they may generally defer to the “local educational agencies,” they do have the right and responsibility to override a methodology decision if such methodology is required for FAPE.
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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