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.
There is an entirely new section that will be added to the student discipline statute in Massachusetts, effective July 1, 2014. This new section will provide students with several important rights in the disciplinary process, and will assign several new responsibilities to school districts. It will be referred to as section 37H 3/4, and will have 6 supbarts, summarized as follows:
- (a): This subpart states that 37H 3/4 applies to all students who are suspended or expelled, with a few very big exceptions. 37H 3/4 does not apply:
- If a student is found with a dangerous weapon or a controlled substance on school grounds, or at a school-sponsored or school-related event; or
- If a student assaults school faculty or staff on school grounds, or at a school-sponsored or school-related event; or
- If a student is charged with a felony.
- (b): This subpart requires the decision maker at a disciplinary hearing to “exercise discretion; consider ways to reengage the student in the learning process; and avoid using expulsion as a consequence until other remedies and consequences have been employed.”
- (c): Students suspended or expelled under 37H 3/4, as well as their parents, must be provided with written notice of the charges and the reason for the suspension or expulsion in English, as well as in the student’s primary language if that language is other than English. The affected student also must have the opportunity to meet with the principal, headmaster, or other designee to discuss the charges and reasons for the suspension or expulsion prior to the suspension or expulsion taking effect. Parents must be given the opportunity to participate in this meeting, as well.
- (d): This subpart concerns notification:
- If the principal makes a decision to suspend or expel a student after the meeting described in subpart (c), then the principal shall update the written notification to reflect the meeting that took place;
- If a student is suspended or expelled for more than 10 school days in any school year, the school must provide the student and parents with written notification of a right to appeal and the process for appealing. However, the suspension or expulsion will remain in effect prior to any appeal hearing;
- If a student in kindergarten through grade 3 receives an out of school suspension, the principal shall notify the superintendent in writing “prior to such suspension taking effect.”
- (e): This subpart concerns the appeals process:
- Students suspended or expelled for more than 10 school days – whether contiguous or cumulative – shall have the right to appeal the suspension or expulsion to the superintendent;
- Students or parents must notify the superintendent in writing of their request for an appeal within 5 calendar days of the effective date of the suspension or expulsion. However parents or students may also request an extension of up to 7 calendar days, and if such an extension is requested, then it “shall be granted.” The wording of this law is a bit vague. My reading of this law is that students can request an additional 7 calendar days beyond the initial 5, allowing for a total of 12 calendar days to appeal. However, I can foresee some school districts trying to argue that the law only allows for an additional 2 days, for a total of 7 calendar days;
- The superintendent must make a good faith effort to include the parent or guardian in any appeal, but does have the right to proceed with an appeal hearing without the parent or guardian, as long as that good faith effort was made;
- At the appeal hearing, students have the right to present oral and written testimony, and to cross-examine witnesses. Interestingly, it is only the student who has this right, not the parent or guardian. However, the student does have the right to counsel at the appeal hearing;
- The superintendent must render his or her decision within 5 calendar days of the hearing, and this decision is the final decision of the school district. No further appeals within the school district are allowed.
- (f): “No student shall be suspended or expelled from a school or school district for a time period that exceeds 90 school days, beginning the first day the student is removed from an assigned school building.”
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.
The following table summarizes some of the key statistics for Fiscal Year 2012 that were recently published by the Massachusetts Bureau of Special Education Appeals (BSEA). There are a couple of points worth highlighting:
- Out of 8,460 rejected IEP’s, there were only 52 due process hearings with decisions. Why? Most cases reach resolution prior to a hearing. In other words, based on the statistics, there is only a 0.6% likelihood that any rejected IEP will actually go all the way through to a complete Hearing.
- Of the 52 decisions that were rendered, parents prevailed in just 13 cases. That represents just 25% of the BSEA decisions.
What is the lesson here for parents? Proceed with caution when it comes to litigation. As an attorney, I judge my success not by the number of cases litigated, but by the number of positive outcomes achieved (preferably without litigation).
|Actual Hearings with Formal Decisions||48||50||35||52|