A statute of limitations defines how long you have to bring a legal action. With special education matters, if you are going to file for a due process hearing, the general rule is that you have 2 years to file for a hearing regarding any alleged violation. 20 U.S.C. § 1415(b)(6)(B). If you make a unilateral placement (i.e. make a “unilateral” decision to enroll your child in a private school without school district approval), NH has significantly limited the time period that is allowed for filing for a hearing related to that placement. In particular, New Hampshire allows just 90 days for filing for a hearing regarding the unilateral placement. RSA 186-C:16-b. The 90 days runs from the date the unilateral placement is made. Further complicating this is that the date of the unilateral placement is not always clearcut. For example, is it:
- The date that the parents applied to the private school?
- The date that the private school accepted the student?
- The date that the parents returned the acceptance letter to the private school?
- The date that the parents sent in their first deposit to the private school?
- The date that payment was made in full?
- The date that the parents notified the public school district that they were withdrawing their child from the public school, and enrolling him or her at the private school?
Parents might have a bit of a reprieve from the 90 day burden if the school district did not provide the parents with notice of their special education rights, which they usually do at least annually. If notice was not given, then the 90 days would not start running until proper notice is given to the parents.
The exact wording of the NH law is:
186-C:16-b Due Process Hearing; Appeal. –I. Any action against a local school district seeking to enforce special education rights under state or federal law shall be commenced by requesting an administrative due process hearing from the department of education within 2 years of the date on which the alleged violation was or reasonably should have been discovered.
II. Notwithstanding the provisions of paragraph I, any action against a local school district to recover the costs of a unilateral special education placement shall be commenced by requesting an administrative due process hearing from the department of education within 90 days of the unilateral placement.
III. Where the parent, legal guardian or surrogate parent has not been given proper written notice of special education rights pursuant to 20 U.S.C. section 1415(d), including notice of the time limitations established in this section, such limitations shall run from the time notice of those rights is properly given. The department of education shall make available a model notice of rights which school districts may use as one means of complying with this paragraph.
Have you ever wondered what private special education schools charge cities and towns when a school district has to pay tuition for a student placed at that school? In Massachusetts, there is a division of state government, called the Operational Services Division, that sets tuition rates that state-approved private special education schools may charge school districts. This is public information posted on the internet. Click here to check the details and to find the tuition rate for the program you are interested in.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
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.