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.
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.
Joining a Third Party to a BSEA Case
When you have been harmed, and you need to take legal action against another party, you probably think of a lawsuit between a plaintiff and defendant. But what if you, as the plaintiff, cannot get complete relief from taking action against just one party? Or what if the relief sought by the plaintiff would result in an unfair burden placed on the defendant? In those types of cases, it might be necessary to “Join” a third party, thereby making that third party part of the lawsuit.
For matters dealing with special education, a due process hearing is the equivalent of a lawsuit in court. Each state has its own administrative body which adjudicates due process hearings. In Massachusetts, the administrative body is called the Bureau of Special Education Appeals (“BSEA”). The BSEA Hearing Rules for Special Education Appeals list factors that a Hearing Officer should consider when a request is made to join a third party (See BSEA Hearing Rule 1(J) in the above link).
The factors defined in Rule 1(J) are:
- The risk of prejudice to the present parties in the absence of the proposed party;
- The range of alternatives for fashioning relief;
- The inadequacy of a judgment entered in the proposed party’s absence; and
- The existence of an alternative forum to resolve the issues.
Two recent rulings from the BSEA provide excellent examples of how a Hearing Officer applies the above factors to a real-life situation. In the case of Student v. North Middlesex Regional School District & Department of Children and Families (22 MSER 156 (2016)), the parents filed a BSEA due process hearing request against both the school district (“NMR”) and the Department of Children and Families (“DCF”) seeking a six month residential placement to address the student’s chronic stress. DCF believed that it should not be joined as a party, and filed a Motion to Dismiss. The school district, on the other hand, was opposed to removing DCF as a joined party.
Hearing Officer Rosa Figueroa ruled in favor of the parents and the school district in denying DCF’s Motion to Dismiss. Although DCF did not have care or custody of the student, it did provide a Treatment Plan and also arranged for a neuropsychological evaluation of the student, so there was a pre-existing relationship between the student and DCF. The hearing decision documents the school district’s argument:
NMR argued that the scope of the Hearing therefore involves not only Student’s need for residential placement but also: a) whether her current private day placement offers her a FAPE; b) whether Student requires additional in-home or residential services; (3) whether those in-home or residential services would be educational in nature; and d) if not educational in nature, whether DCF is responsible to provide them. Moreover, according to NMR, given that Student and her family are currently receiving services under a Treatment Plan Document (June 1, 2016 Treatment Plan Document) it would appear that any difficulty experienced by Student in the home is attributable to the home environment rather than unmet educational needs, therefore, a private day placement for Student would suffice to offer her a FAPE in the least restrictive environment. Since a determination of the need for residential placement and/or home wrap-around services, as well as whether such services would be for educational reasons may involve orders against NMR and DCF, the BSEA would be unable to fashion the necessary remedies in the absence of DCF. Lastly, NMR argued that administrative efficiency could only be assured by maintaining DCF as a party.
22 MSER 156 (2016). Hearing Officer Figueroa agreed that “the existence of an active and comprehensive Treatment Plan establishes enough of a relationship to allow the BSEA to order non-residential services (such as additional home-based or therapeutic services) consistent with DCF’s rules and regulations, that are necessary to enable Student to receive a FAPE.” Id. In other words, since there was at least a possibility that DCF’s services might be needed in order for the student to be able to receive her Free and Appropriate Public Education (“FAPE”), DCF needed to stay involved as a joined party in the case.
It is important to realize that the ruling against DCF’s Motion to Dismiss does not mean that the parents won their residential placement. This Motion was just one aspect of the larger overall litigation. The decision simply kept DCF involved as part of the case.
In the second case, Student & Natick Public Schools (22 MSER 159 (2016)), the result was the exact opposite (DCF was not joined), but for reasons that are very much in line with the North Middlesex case. In Natick, it was the parent who tried to join DCF “because she asserts that DCF was ‘complicit’ with alleged actions by Natick that Parent believes deprived Student of a free, appropriate public education (FAPE) and created a ‘hostile environment’ within the Natick Public Schools. Parent’s position is that… DCF (among others) collaborated with Natick to deprive Student of her rights.” 22 MSER 159 (2016).
The facts in Natick show that Natick did apply for a Child Requiring Assistance (CRA) petition with the Juvenile Court. Natick also filed a 51A report with DCF because of concerns about the students school attendance. However, the student was never under DCF care or custody, DCF did not have an open case on the student or her family, and DCF was not providing any services to student or the family.
Hearing Officer Sara Berman provided an excellent summary of the factors that a Hearing Officer considers in determining joinder:
In general, factors that hearing officers consider in determining whether the criteria of 603 CMR 28.08(3) and Rule I.J have been met include the following:
- The student’s eligibility for services from the agency;
- status (or lack thereof) as a current client of the agency;
- length and degree of involvement that the agency already has with the student, if any;
- likelihood that the evidence at hearing will show that the student needs services that only are available from the agency to benefit from special education, that the agency has refused or failed to provide such services, and that no appropriate forum exists to contest the agency’s decision;
- likelihood that an order to the school district alone will provide the student with FAPE;
- administrative efficiency of joining a potentially responsible state agency early in the proceeding.
On the other hand, the BSEA has declined to join human services agencies in situations where the agency has found the student ineligible or has not determined eligibility under its own regulations, where the student is eligible only for minimal services from the agency, or where agency involvement in the future is theoretically possible but speculative.
22 MSER 159 (2016). The Hearing Officer concluded:
DCF should not be joined as a party in the instant case because none of the criteria for joinder listed in the “Legal Frameworks” section of this Ruling have been met. Student is not a current client of DCF. She is not in DCF care or custody, voluntary or otherwise, and receives no DCF services. Moreover, Parents seek no DCF services for Student and/or their family now, and there is no evidence in the parties submissions that they intend to do so in the future… [C]omplete relief, i.e. all relief sought by Parent from the BSEA, can be granted without DCF as a party. There is no risk of prejudice to any existing party if DCF is not joined because there is no remedy that the BSEA can order against DCF.
Id. Through these two cases, we can see how a very similar approach and analysis resulted in polar opposite decisions because the facts of the cases were so different.
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.
What Qualifies as a Disability?
Medically speaking, there are countless types of disabilities. Educationally speaking, the number disability categories is much more limited. What sometimes causes confusion and frustration for parents and school personnel alike is that the definition of disabilities under state and federal laws differs from the medical definitions used by doctors under the DSM-5 manual.
Massachusetts
For a child in Massachusetts to qualify for an IEP, he or she must have at least one of the following specifically defined types of disabilities: Autism, Developmental Delay, Intellectual Impairment, Sensory Impairment (Hearing Impairment or Deaf, Vision Impairment or Blind, Deafblind), Neurological Impairment, Emotional Impairment, Communication Impairment, Physical Impairment, Health Impairment, or Specific Learning Disability. 603 CMR 28.02(7). Although this might seem like a very limited list of disabilities, they are, in fact, very broad categories that cover a wide variety of conditions. The specific definitions under Massachusetts education law are as follows:
(a) Autism – A developmental disability significantly affecting verbal and nonverbal communication and social interaction. The term shall have the meaning given it in federal law at 34 CFR §300.8(c)(1).
(b) Developmental Delay – The learning capacity of a young child (3-9 years old) is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: receptive and/or expressive language; cognitive abilities; physical functioning; social, emotional, or adaptive functioning; and/or self-help skills.
(c) Intellectual Impairment – The permanent capacity for performing cognitive tasks, functions, or problem solving is significantly limited or impaired and is exhibited by more than one of the following: a slower rate of learning; disorganized patterns of learning; difficulty with adaptive behavior; and/or difficulty understanding abstract concepts. Such term shall include students with mental retardation.
(d) Sensory Impairment – The term shall include the following:
Hearing Impairment or Deaf – The capacity to hear, with amplification, is limited, impaired, or absent and results in one or more of the following: reduced performance in hearing acuity tasks; difficulty with oral communication; and/or difficulty in understanding auditorally-presented information in the education environment. The term includes students who are deaf and students who are hard-of-hearing.
Vision Impairment or Blind – The capacity to see, after correction, is limited, impaired, or absent and results in one or more of the following: reduced performance in visual acuity tasks; difficulty with written communication; and/or difficulty with understanding information presented visually in the education environment. The term includes students who are blind and students with limited vision.
Deafblind – Concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs.
(e) Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. The term includes students who have received a traumatic brain injury.
(f) Emotional Impairment – As defined under federal law at 34 CFR §300.8(c)(4), the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.
(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation, stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s educational performance.
(h) Physical Impairment – The physical capacity to move, coordinate actions, or perform physical activities is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: physical and motor tasks; independent movement; performing basic life functions. The term shall include severe orthopedic impairments or impairments caused by congenital anomaly, cerebral palsy, amputations, and fractures, if such impairment adversely affects a student’s educational performance.
(i) Health Impairment – A chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality, or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term shall include health impairments due to asthma, attention deficit disorder or attention deficit with hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, if such health impairment adversely affects a student’s educational performance.
(j) Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 CFR §§300.8(c)(10) and 300.309.
New Hampshire and Federal Education Law
Unlike Massachusetts, New Hampshire education law simply defers to the federal educational definitions of disability, but then adds two more categories not found in the federal law. The federal special education disability categories are as follows: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. 34 CFR 300.8. The extensive definitions are as follows:
(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.
(ii) Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.
(iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.
(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.
(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.
(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.
(6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.
(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).
(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that–
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
(ii) Adversely affects a child’s educational performance.
(10) Specific learning disability.
(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.
(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.
New Hampshire specifically references the federal definition (Ed 1102.01(t)(1)), but then also includes developmental delays and acquired brain injury as two additional categories. Ed 1102.01(t)(2 – 3).
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.
Cambridge Sped PAC to Present Several Programs
The Cambridge, Massachusetts Special Education Parent Advisory Council (C-PAC) will have several interesting programs coming up in the near future. Check out the C-PAC website for more details:
November 7, 2012: Basic Rights in Special Education
- Learn about the legally defined role of parents in the Special Education process. This presenter is bilingual and can answer questions in English and Spanish.
December 5, 2012: Section 504 Plans
- 504 Plans protect individuals with disabilities from discrimination and outline accommodations students need to participate fully at school. Learn how this process works in Cambridge.
January 9, 2012: Sarah Ward – Executive Functioning
Cambridge Citywide Senior Center – 806 Massachusetts Avenue (Central Square)
- Sarah Ward, M.S., CCC/SLP will present a workshop on executive function skills, which include time management, attention, organization, memory and problem solving.
January 23, 2013: IEP Goals & Progress Monitoring
- Trudy Wilcox will assist parents in understanding data to set goals and monitor your child’s progress at school.
February 6, 2013: Special Education Mediation
- Mediator Myrto Flessas will explain the process how parents and school districts may access mediation to resolve disagreements.
March 6, 2013: Behavioral Disabilities Panel Discussion
- Learn about a variety of strategies for helping students develop skills for positive behavior.
March 20, 2013: Summer Programs & Services
- Learn who qualifies for extended year programs and how to access summer services; and hear from a variety of private summer programs that welcome or specifically serve students with disabilities.
April 3, 2013: Who Cares About Kelsey?
- Join us to watch and discuss Dan Habib’s new film. Learn more at www.whocaresaboutkelsey.com
May 1, 2013: The Impact of Trauma on Learning
- Learn about ways parents and schools can effectively support students whose learning is affected by past trauma.
Marlborough Public Schools and Child Find Responsibilities
Wicked Local Marlborough has posted the following online:
If you know of any school-age child, ages 3 to 21, who is a resident of Marlborough, who is attending a public or private school or who is homeless or has left school, and who could benefit from an evaluation under special education, 504 or educational services under the McKinney-Vento Homeless Assistance Act, contact the Marlborough Public Schools Office of Special Education for information regarding eligibility guidelines and services.
It is the responsibility of the Marlborough Public Schools to identify any child who is a resident of Marlborough who may have a disability, regardless of the severity of the disability. It is also the responsibility of the Marlborough Public Schools to evaluate those students to determine if they are eligible for special education or related services under IDEA (Individuals with Disabilities Education Act) or 306 CMR 28 (Massachusetts Special Education Regulations).
Write inquiries to Special Education Director Tina M. Betley or Assistant Special Education Director Karen Sturges at Marlborough Public Schools, Office of Special Education, 25 Union St., Marlborough, MA 01752 or call 508-460-3502 and press 2.
To the extent practical and as required by law, the Marlborough Public School district will work with students and their families to provide stable in-school attendance and other services, according to the department.
Special Education “Basic Rights Workshop” in Wilmington
Wicked Local Wilmington has posted the following online:
Wilmington Special Education Parent Advisory Council (SEPAC) invites parents, guardians and other interested parties to attend a workshop entitled “Basic Rights Workshop” on Thursday, Oct. 25, 6:30-8:30 p.m., at the Wilmington High School Library, 159 Church St., in Wilmington.Presented by a representative from the Federation for Children Special Needs, this workshop provides families with an introduction to their rights and responsibilities under the Individuals with Disabilities Education Act (IDEA), Massachusetts Special Education Law and No Child Left Behind (NCLB). It is designed to help parents learn how to be effective partners with the school, to decide the child’s eligibility for special education, to plan, make decisions and to monitor the educational progress of their child.
If you plan to attend this workshop, it would be helpful, but not necessary, if you send an email to fjobrien@gmail.com, so we will have a sufficient number of handouts available.
For more information about Wilmington SEPAC, go to www.wilmington.k12.ma.us/SEPAC.htm.
Read more: Wilmington basic rights workshop set for Oct. 25 – Wilmington, MA – Wilmington Advocate http://www.wickedlocal.com/wilmington/news/x1826359608/Wilmington-basic-rights-workshop-set-for-Oct-25#ixzz2AJkYmDCh
School Discipline Gets Even More Draconian with Mass. Gen. Laws ch. 71 § 37H 1/2 –
In a prior blog post, I discussed how Draconian Mass. Gen. Laws ch. 71 § 37H can be. For example, if a student is simply found in possession of marijuana at a school-sponsored event – regardless of amount, regardless of use or non-use, regardless of whether they are even aware of being in such possession – not only can the student be expelled from school, but they can also be prevented from enrolling in any other school district in the Commonwealth.
As the TV commercials say, “But wait, there’s more…”
Massachusetts has also enacted Mass. Gen. Laws ch. 71 § 37H 1/2. Under 37H and 1/2, if a student is simply charged with a felony – even if the charge is baseless, and regardless of where the alleged event supposedly took place – the student can be suspended by the school principal. For how long? “[F]or a period of time determined appropriate by said principal or headmaster…” A day, a week, a month – the length of time is completely up to the principal. There is a standard that the principal is supposed to utilize, but even that is very subjective. Before a student can be suspended under this section of the law, the law requires that the principal determine that “the student’s continued presence in school would have a substantial detrimental effect on the general welfare of the school.” The student does have the right to appeal the principal’s decision to the superintendent, but that has to be done within 5 calendar days.
But wait, there’s more…
If the student is actually convicted of a felony – even if the felony has absolutely nothing to do with the school – the student can be permanently expelled. The same time frames, standards, and right to appeal as described above for suspensions apply equally to expulsions, as well. And as described in the prior blog post for 37H, no other school system in the Commonwealth is required to admit a student who has been expelled under this section of the law.
37H and 37H 1/2 have unfortunately been used too often in an unfair way to keep certain students from accessing a public school education. My child attended public school, so I certainly can appreciate the need to keep schools completely safe for all students and teachers. As a lawyer, though, it is very frustrating to see students being denied an education – sometimes permanently – simply because they may have been in the wrong place at the wrong time. It is also possible that a student may have made a really stupid decision that they could learn from if given the chance. When 37H 1/2 is used improperly, what it teaches young people who have made a mistake is that there is no sense being remorseful for one’s acts or learning from one’s mistakes, because punishment can be severe and permanent, even at a young age. Thanks to the very hard work and dedication of many state legislators and the fine people at Massachusetts Advocates for Children, improvements to the discipline laws are finally coming. I will provide details of the upcoming changes in future blog posts, so stay tuned.
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.
Special Education Blog 